Legal News

Merck?s Latest Headache: First Fosamax Case Heads to the Jury

By Ashby Jones

An observation: Product-liability claims against pharmaceutical companies are sort of like the U.S. mail. Come rain, snow, sleet, hail, boom-times or recessions, the claims just keep on coming. It’s bad news for Big Pharma, but good news for lawyers on both sides of the issue, as such cases typically generate big outside-counsel bills and often render huge settlements, of which plaintiffs lawyers typically get a big slice.

The latest litigation to watch on this front: the fight over Merck’s Fosamax. According to a NYT story out Thursday, drug-company executives and others are closely watching a jury trial in New York over problems associated with Merck’s drug, prescribed to women to offset the bone loss associated with menopause.

The trial is the first of about 900 state and federal cases pending against Merck in which plaintiffs claim that taking Fosamax caused them to develop a rare problem called osteonecrosis of the jaw.

In the first case against Merck, which began last month in Manhattan federal court, a 71-year-old Florida woman alleges that taking Fosamax for several years caused her jawbone tissue to die.

A jury of three men and five women began deliberating the case on Wednesday afternoon. Click here for a story on Wednesday’s courtroom proceedings, from the WSJ’s Chad Bray.

Compared with other drug product liability cases that have involved many thousands of plaintiffs, the Fosamax litigation is relatively small. Merck spent $7 million in the second quarter of this year on legal expenses in the case and has set aside $42 million to defend itself in about 900 federal and state Fosamax cases brought by about 1,280 plaintiff groups, according to a company regulatory filing at the end of June.

Merck's main defense is that there is no definitive medical evidence proving that Fosamax causes jawbone death and that the plaintiff in the Manhattan case had other health factors that could have caused her jaw problems.

Meanwhile, lawyers for the plaintiff, have been using the case to put Fosamax itself on trial, contending that Merck as a corporation put patients at risk by overpromoting Fosamax and by not warning doctors who prescribe the drug about the potential for jawbone disintegration.

In the courtroom on Wednesday were Venable’s Paul Strain, representing Merck, and Timothy O’Brien, representing the plaintiff.

Full post as published by Law Blog - WSJ.com on September 03, 2009 (boomark / email).