Merck has triumphed in the second of three key cases alleging its osteoporosis drug, Fosamax, can cause osteonecrosis of the jaw. The victory comes just two months after a similar case resulted in a mistrial when its jury deadlocked. In a summary judgment for Flemings v. Merck, issued November 23, Manhattan U.S. District Court Judge John Keenan said the case’s plaintiff, Bessie Flemings, failed to present sufficient evidence that Fosamax caused the deterioration of her jaw bone.

 

In his ruling, Keenan wrote that the “plaintiff has offered no other evidence to establish that Fosamax caused her to develop ONJ, and therefore her failure to warn claim is insufficient as a matter of law.” The ruling is unlikely to impact other pending Fosamax cases, says Ms. Flemings’ attorney, Robert Germany.

 

“We are pleased that the court agreed with us that Ms. Flemings did not present any reliable evidence supporting her claim that Fosamax caused her to suffer ONJ,” says Paul Strain, Merck’s counsel. “Unfortunately, Ms. Flemings had medical problems that cause people to develop jaw problems regardless of whether they were taking Fosamax.”

Plantiffs in more than 900 cases nationally have blamed Fosamax for health issues, most often involving ONJ. The majority of such cases are being handled by Keenan, as part of a consolidated multidistrict litigation. A third Fosamax trial, Maley v. Merck, is scheduled to start on April 19, 2010.

 

As of September 2009, Merck has reserved $48 million for its future Fosamax legal defense costs, but has not set aside any money for potential liability relating to the cases, according to a regulatory filing.

 

Fosamax, which is intended for the treatment and prevention of osteoporosis in postmenopausal women, went off-patent in 2008.