Merck has proposed a $27.7
million to settle with Plaintiffs who sued the company over allegations that
its osteoporosis drug Fosamax caused osteonecrosis of the jaw. The condition is
a disease that causes bones in the jaw to deteriorate or die.
The proposed settlement was announced
earlier this month at a court hearing in New York to resolve 1,140 lawsuits
pending in federal and state courts. Of course, any settlement would need to be
approved by a judge. The case is In Re Fosamax Products Liability Litigation,
U.S. District Court, Southern District of New York, No. 06-md-01789.
According to sources, the
settlement would require a 100% participation rate and evidence that the
claimants satisfy eligibility requirements. A high participation rate is common
in global settlements for mass tort litigation, but this rate is above and
beyond the normal participation threshold for such settlements.
At the December 9th hearing, it
was announced that plaintiffs' law firms had until January 13, 2014 to inform
the Defendants of their intent to participate in the settlement process. Plaintiffs
have until March 31, 2014 to opt-out of the settlement. Merck would then have
until May 15, 2014 to decide whether or not it will go forward with the deal.
The settlement would resolve
a large portion of the 5,255 product liability cases facing Merck over Fosamax,
a one-time blockbuster drug with $3 billion in sales in 2007. Sales have
declined since Fosamax lost patent protection in 2008. Through September, Merck
had reported $421 million in Fosamax sales in 2013, a sharp drop from years
past.
Of the lawsuits over Fosamax,
about 860 of the cases were before Judge Keenan in New York. Since the cases
were consolidated in 2006, Keenan has presided over all of the federal cases.
Judge Keenan had held a series of "bellwether" trials, allowing Merck
and plaintiffs' lawyers to assess trends and outcomes in similar cases. This is
also common in consolidated mass tort cases.
The last Fosamax trial before
Judge Keenan was held in February 2013 and resulted in a $285,000 verdict for the
plaintiff. Merck lost just one other of the five bellwether trials when a jury
awarded Florida resident Shirley Boles $8 million. The judge later cut that sum
to $1.5 million. Merck won two other trials in a New Jersey state court over
jaw injury claims.
Merck still faces over 4,115
lawsuits over claims that Fosamax causes a completely different type of
injury-femur fractures. Those injuries have been more publicized by the media Those
lawsuits are consolidated separately in an MDL in front of Judge Brown in the
U.S. District Court for New Jersey. What does this proposed settlement mean for
those cases? That is unknown, but it may indicate that Merck wants to settle
those claims and get all of these Fosamax lawsuits behind them.
