Judge Rules Fosamax Plaintiffs Not Required to Verify Injuries

Fosamax lawyers at Pintas & Mullins Law Firm confirm that a federal judge recently refused to require hundreds of Fosamax victims to substantiate their injuries. Merck, the drug’s manufacturer, previously requested that about 600 plaintiffs submit expert reports linking Fosamax to their injuries.

Merck asked the judge to approve a ‘Lone Pine’ order for these cases, which requires plaintiffs to show a causal link between Fosamax and their specific injury. The presiding judge did previously grant such an order in November 2012, though refused Merck’s request for a second.

The first Lone Pine subjected about 440 plaintiffs to critique and led to 430 of them being dismissed from the multi-district litigation (MDL). Merck’s second request asked for medical verification from three separate categories of plaintiffs: those who were unable to establish they took Fosamax for over one year, those who had yet to produce an official jaw necrosis diagnosis, and those whose symptoms began to manifest over three years after last taking Fosamax.

The judge denied Merck’s request, stating that the court would have to conduct individualized determinations into certain plaintiffs, and that it would also risk dismissing viable cases from the MDL. There are currently more than 1,000 in the Fosamax MDL, all of which claim the osteoporosis drug caused osteonecrosis (bone death) of the jaw.

The judge also noted that the category of plaintiffs who have not yet produced medically-confirmed osteonecrosis could not easily be identified in an objective fashion. He stated that disagreements would inevitably arise from this categorization concerning plaintiff’s medical records denotation of a distinct injury.

He further stated that he found no discernible reason why those who took Fosamax for under one year should not be allowed to continue, as they may still have a triable claim. As far as the third category of plaintiffs proposed by Merck – those whose symptoms arose more than three years after stopping Fosamax – the judge ruled that the medical definition of a drug-related injury does not include any number of years after which they cannot be viable.

The Fosamax cases have been in the MDL for more than six years, during which time Merck has produced 11 million pages of documents and 24 company witnesses. There has been a heightened acceptance of Lone Pine orders in pharmaceutical cases in recent years. Some consider this trend a tactic by big pharma to set up as many hurdles as possible for injured plaintiffs, as Lone Pine orders often result in increased transactional costs.

Two Fosamax bellwether cases have already ended in favor of plaintiffs, the first in 2010 when Shirley Boles won $8 million in her case against Merck. Boles underwent a tooth extraction while she was taking Fosamax, which exacerbated an infection she developed after the dental procedure and caused a portion of her jaw to be exposed.

The second, decided in 2013, ended in a $285,000 payout for plaintiff Rhoda Scheinberg. The New York federal jury ruled that Merck failed to properly warn of the potential for jaw necrosis and was liable for Scheinberg’s jaw deterioration. Scheinberg’s injuries were much less severe than many other plaintiffs in the MDL, and she was prescribed the drug after 2005, the year Merck changed Fosamax’s labels to disclose the jaw bone risks. Merck believed the label change adequately warned physicians about the bone risks, however, the jury disagreed.

Fosamax lawyers at Pintas & Mullins Law Firm are currently representing plaintiffs seriously injured by the osteoporosis drug. If you or a loved one developed jaw necrosis or suffered a femur fracture during or after taking Fosamax, you may be entitled to significant compensation for your medical bills, lost wages, and pain and suffering.