Judge in Fosamax Jaw Bone Cases Wants Other “Bellwether” Trials

The prescription drug Fosamax, manufactured and distributed by Merck & Co., is intended to treat bone loss associated with osteoporosis and other diseases. It has been linked to serious side effects, however, including femur fractures and jaw bone death known as osteonecrosis of the jaw, or “ONJ.” ONJ is an extremely painful and disfiguring bone disease.

Fosamax jaw injury cases were consolidated a number of years ago in New York by the Judicial Panel on Multidistrict Litigation (“MDL”). A judge overseeing MDL cases typically conducts what are known as “bellwether” trials to determine the strength of plaintiffs’ claims and the extent of a defendant’s potential liability, and whether the consolidated cases should be returned to the courts in which they initially were filed to be tried individually in those jurisdictions.

To date, three bellwether trials involving Fosamax jaw injury claims have gone to trial in federal court and a fourth bellwether case was dismissed before the trial began. In one of the Fosamax jaw injury bellwether cases, a jury awarded a Florida woman $8 million in damages.

Now, the federal judge overseeing the Fosamax jaw injury cases, the Hon. John F. Keenan, is indicating that he would like two additional bellwether cases to go to trial. That is in addition to the two Fosamax jaw injury cases already scheduled to go to trial in March and in May 2011.

Judge Keenan is ordering that the two new Fosamax jaw injury bellwether cases include a plaintiff who had been taking Fosamax before July 2005, when Fosamax added a warning indicating that ONJ had been tied to bisphosphonates such as Fosamax, and a plaintiff who began to use Fosamax and suffered ONJ after July 2005.

The immediate effect of the court’s decision to add two new Fosamax jaw injury bellwether trials is that Merck may be less likely to be willing to settle these cases now. On the other hand, Merck is facing increased pressure from Fosamax users because Fosamax side effects seem to include more than the jaw injury that is at the heart of the cases consolidated before Judge Keenan. In particular, Fosamax now has been linked to a rare type of leg fracture usually seen only in high impact accidents. Many more Fosamax femur fracture cases appear to be on the horizon.

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