Merck To Settle Suits Alleging Jaw Damage From Osteoporosis Drug

Merck To Settle Suits Alleging Jaw Damage From Osteoporosis Drug

WHITEHOUSE STATION, N.J. — (Mealey's) Merck & Co. Inc. has agreed to pay $27.7 million to resolve product liability suits alleging that its osteoporosis drug Fosamax caused osteonecrosis of the jaw (ONJ), or bone death, according to a press release the company issued Dec. 9 (In Re:  Fosamax Products Liability Litigation, No. 1:06md1789, S.D. N.Y.). 

The settlement will resolve approximately 1,200 plaintiffs’ claims, Merck says, provided that requirements, including a 100 percent participation rate and evidence that claimants satisfy eligibility requirements, are met. 

Approximately 900 federal jaw injury cases remain consolidated before U.S. Judge John F. Keenan of the Southern District of New York.  A total of 1,135 cases were filed or transferred to the Southern District, according to the docket of the Judicial Panel on Multidistrict Litigation. 

Since litigation began in 2005, Merck has won five of seven ONJ cases tried to verdict. 

“We are pleased with this resolution of the ONJ litigation, and we continue to be committed to the vigorous defense of these cases,” Merck said in its press release.  “Above all, we will continue to always act in the best interest of patients.  We remain confident in the efficacy and safety profile of FOSAMAX, which was developed and studied carefully by dedicated Merck scientists.” 

Femur Fractures 

The settlement does not resolve cases alleging femur fractures, which at this point form the larger part of Merck’s Fosamax exposure by plaintiff numbers.  Merck reported in a Securities and Exchange Commission filing that, as of Sept. 30, approximately 4,115 of 5,255 Fosamax-related actions, including a case that seeks class action certification and damages and/or medical monitoring, allege femur fractures or other bone injuries.  A second multidistrict litigation has been established in the U.S. District Court for the District of New Jersey for cases alleging femur and other bone fractures (In Re: Fosamax [Alendronate Sodium] Products Liability Litigation [No. II], MDL No. 2243, D. N.J.).  

In addition, also as of Sept. 30, Merck reported approximately 2,520 cases alleging femur fractures pending before Judge Carol E. Higbee in the Atlantic County, N.J., Superior Court (In Re: Fosamax Litigation Court, No. 282, N.J. Super., Atlantic Co.). 

Merck is represented by Paul F. Strain of Venable in Baltimore.  The PSC is represented by Timothy O'Brien of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor in Pensacola, Fla. 

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