Fosamax MDL Jury: Drug Wasn't Defectively Designed, Didn't Cause Jaw Injury

NEW YORK - A New York federal jury hearing the fourth Fosamax bellwether trial on Oct. 3 found that Merck's osteoporosis drug was not defectively designed and did not cause a plaintiff to develop osteonecrosis of the jaw (ONJ) (In Re:  Fosamax Products Liability Litigation, MDL Docket No. 1789, No. 06-md-1789, Linda Secrest v. Merck & Co., Inc., No. 06-6692, S.D. N.Y.).

The jury in the U.S. District Court for the Southern District of New York answered "no" to the first question on the jury interrogatory:  "Do you find that Fosamax was a defective product - in other words, unreasonably dangerous due to defective design - before July 1, 2004, and that its defective design was a legal cause of Mrs. [Linda] Secrest's osteonecrosis of the jaw ('ONJ')?" 

In August, Judge John F. Keenan granted summary judgment to Merck on Secrest's other claims. 

Secrest, a Florida resident, was prescribed Fosamax in June 1998 and says she continued using the osteoporosis drug until April 2005.  She claims that she was diagnosed with ONJ, a condition in which the jaw bone fails to regenerate, particularly after oral surgery. 

Whether Secrest took Fosamax continually during the seven-year period, when she was diagnosed with ONJ and whether she had ONJ were in dispute. 

In a press release, Merck counsel Chilton Varner of King & Spalding in Atlanta said Secrest's medical problems caused her to develop jaw and dental problems.  Varner said Secrest had a long history of invasive dental procedures and suffers from medical conditions that "inhibit the body's ability to heal."  

Secrest's counsel, Timothy M. O'Brien of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor in Pensacola, Fla., told Mealey Publications "[W]e will appeal on at least two issues:  one is the Court's pretrial ruling dismissing the failure to warn claim (leaving only the defective design claim) and two is the Court instructing the jury that a product is presumed non-defective if the FDA approved it.  That one-two combination didn't leave the jury much choice in the matter." 

Testimony began Sept. 8 and continued over 10 days.  The jury went out on Sept. 27 and deliberated three days before returning its verdict Oct. 3. 

[Editor's Note:  Full coverage will be in the Oct. 6 issue of Mealey's Emerging Drugs & Devices.  In the meantime, the blank verdict opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #28-111006-024V.   For all of your legal news needs, please visit www.lexisnexis.com/mealeys.] 

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