Judge jettisons claims in bellwether Fosamax case

Merck ($MRK) has won a significant victory in the fourth Fosamax case to hit court. U.S. District Judge John Keenan tossed all but one claim against the company, leaving it to fight patient Linda Secrest's charge Fosamax had a design defect that caused her osteonecrosis of the jaw.

What claims went by the wayside? Keenan said Secrest can't pursue her claim that Merck failed to warn about Fosamax's safety risks, Reuters reports. Nor can she go after punitive damages, he ruled, because a reasonable jury wouldn't conclude Merck had breached its legal duties intentionally or with "conscious disregard or indifference" to patients' health.

Secrest's lawsuit is one of more than 1,600 cases filed by Fosamax patients claiming the osteoporosis drug caused their jawbones to deteriorate, and Merck didn't do all it could to warn patients. The company added a warning about osteonecrosis of the jaw to Fosamax's label in 2005.

Secrest's suit is the fourth bellwether case in Merck's Fosamax litigation load. The company won two of the three previous cases at trial, and in the third, a jury awarded the Fosamax patient $8 million. Keenan reduced that award to $1.5 million, and plaintiff Shirley Boles has asked for a new damages trial. Merck, meanwhile, appealed the jury's verdict. If Merck prevails in Secrest's case, then patients with outstanding cases may be more eager to settle. However, if Secrest persuades a jury, other plaintiffs could gain some strength in the process.

- see the Reuters news

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