Merck, manufacturer of the drug Fosamax, has declared itself the victor in the fifth bellwether trial concerning the product and a condition known as osteonecrosis of the jaw (“ONJ”). The Whitehouse, N.J., drug maker is facing hundreds of cases in state and federal courts, generally alleging that use of Fosamax can cause a jaw-destroying condition known as ONJ and that Merck failed to properly warn of this risk.
On October 3, Merck issued a press release announcing that “a federal court jury in New York found in its favor in the Secrest v. Merck case, rejecting the claim of a Florida woman who blamed her dental and jaw-related problems on her FOSAMAX use.” Secrest v. Merck (case no. 1:06-cv-06292)—a so-called bellwether lawsuit—is the fifth lawsuit involving claims that Fosamax caused a plaintiff to suffer ONJ to go to trial. Merck, the developer and manufacturer of the brand-name drug, is currently defending thousands of Fosamax cases, including cases alleging that the drug caused users to suffer femur fractures, as well as ONJ cases. The cases involving femur fractures were recently transferred to a separate MDL.
Merck won three of the first four bellwether trials in the ONJ MDL. The first case to be tried to a verdict, Maley v. Merck, resulted in a defense verdict for Merck in May 2010; the second case to be tried to a verdict, Boles v. Merck, initially resulted in a mistrial in September 2009 after the jury was unable to reach a unanimous verdict and a retrial of that case in June 2010 resulted in a plaintiff verdict-which was later reduced by Judge Keenan and which Merck intends to appeal after the damages portion of the case is retried; the third case to be tried to a verdict, Graves v. Merck, resulted in a defense verdict for Merck in November 2010; and the fourth case to go to trial, Rosenberg v. Merck, which was tried in the Superior Court for Atlantic County, New Jersey, resulted in a defense verdict for Merck in February 2011.
The outcome is significant because bellwether trials are used to assist attorneys to evaluate similar cases for determining settlement talks and strategies. As of June 30, 2011, there were about 1,650 lawsuits, including approximately 2,050 plaintiff groups, that have been filed in federal and state courts.
