The judge
overseeing the Fosamax MDL has ruled that claims brought by plaintiffs whose
injury is an atypical femur fracture injuries that occurred before the Fosamax
label was changed to warn of such risks are federally preempted. His reasoning
was the FDA denied Merck & Co.’s previous attempts to enhance the warning
label.
Judge Joel Pisano of the U.S. District Court for the
District of New Jersey held that the court’s preemption ruling in the bellwether
case Glynn v.
Merck & Co. applies
to all pre-label change cases in this MDL. The court found no reason not to
apply its preemption ruling to other similarly situated plaintiffs because: (1)
the case in question had been selected as a bellwether; (2) preemption had been
thoroughly briefed; and (3) plaintiffs had been repeatedly instructed to come
forward with all their preemption related evidence.
It is not apparent if the plaintiffs will appeal the
Judge’s ruling.
