Judge makes rare move in Merck Fosamax litigation

Having thousands of lawsuits alleging drug dangers all in one court can make them easier to manage and potentially defend or settle. But a U.S. District Court judge has thrown Merck ($MRK) a curve in its Fosamax litigation, ordering hundreds of lawsuits returned to the courts from whence they came.

Judge John Keenan in Manhattan on Friday ordered that 200 cases a month be returned to the courts where they were filed, according to Reuters. The cases allege jawbone injuries were caused by the osteoporosis drug. The order came after efforts at mediation on some of the cases ended in a stalemate recently.

While rare, this kind of action is not unprecedented, according to Timothy O'Brien, one of the attorneys representing plaintiffs in the cases. He pointed out that in 2007 Merck reached a $4.85 billion settlement over its painkiller Vioxx after a federal judge threatened to do the same thing. "I anticipate Merck will continue talking and seek to resolve the cases," O'Brien told the news service. "The opportunity is there."

But a Merck spokeswoman gave no indication that the order, which could make defending the cases much more costly, will alter its legal strategy. Lainie Keller told Reuters the company "is committed to defending its conduct in regard to Fosamax and has confidence in its defense strategy that has had so much success in the courts."

The success she referred to is the fact that Merck so far has won 5 of 7 so-called "bellwether" trials around whether Fosamax caused jawbone injuries. It lost one several years ago and then another in February when a jury awarded $285,000 to a woman, saying the drugmaker had not been upfront about the jawbone risks. The jury rejected a claim, however, that the drug was a defective product. Bellwether cases are used by judges to provide some insight into how the bulk of litigation might go and then by defendants and plaintiffs as leverage in settlement talks.

The cases that Keegan has been considering since 2006 account for only about 20% of the more than 5,000 calls alleging injuries from the former blockbuster drug, Reuters said. In November, Keegan tossed out 430 cases for not being able to provide evidence from experts that their claims were valid. Many of the cases Merck is defending pivot on claims that the osteoporosis drug caused patients' jawbones to deteriorate and Merck didn't do all it could to warn of the danger. The company in 2005 added a warning about osteonecrosis of the jaw to the label of Fosamax, a drug that was reaping about $3 billion annually until it lost its patent in 2008. 

- read the Reuters story

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