A plaintiff claiming that the drug Fosamax caused a painful jaw condition has won a $285,000 verdict against the drug’s manufacturer, Merck. Scheinberg v. Merck & Co., Inc., No. 1:2008-cv-04119 (S.D.N.Y., Feb. 5, 2013). While thousands of lawsuits related to Fosamax are currently pending, this is only the second case that a plaintiff was won at trial. Many cases have been consolidated into two federal district courts, one to hear cases alleging jaw injuries, and another to hear cases alleging femur injuries. Several days before the jury verdict in the Scheinberg case, an appellate court affirmed a verdict and a summary judgment order against a different Fosamax plaintiff in Secrest v. Merck, Sharp & Dohme Corp., No. 11-4358-cv (2nd Cir., Jan. 30, 2013).
Scheinberg filed suit against Merck in 2008, alleging that the drug Fosamax caused her to sustain jaw injuries. The drug was approved to treat osteoporosis in menopausal women. It has been linked to a heightened incidence of femur fractures and osteonecrosis of the jaw (ONJ), a painful condition affecting the jawbone and surrounding tissues. The sixty-nine year-old plaintiff alleges that she developed ONJ as a result of taking Fosamax, and that this caused complications after she had a tooth extracted.
The Judicial Panel on Multi-District Litigation began consolidating Fosamax lawsuits, transferring cases alleging ONJ to the Southern District of New York, and cases alleging femur injuries to the District of New Jersey. About 975 ONJ claims are pending in New York, along with 842 femur claims in New Jersey, and various claims in state courts. Scheinberg’s lawsuit asserted causes of action for the products liability theories of design defect and failure to warn of the risks of a dangerous product. Her suit is one of several “bellwether” cases that the judge has allowed to go to trial, to see how similar cases may turn out. Out of seven bellwethers that have gone to trial so far, Merck has won all but two.
The jury found in Scheinberg’s favor on the failure to warn claim, finding that Merck’s failure to warn of risks that it knew were associated with Fosamax caused her injuries. It rejected her design defect claims, however, refusing to find that her injuries resulted from a defect in the formula for the drug. The other jury verdict against Merck happened in 2010, when a jury awarded a Florida woman $8 million. The district judge later reduced the award to $1.5 million, and an appeal by Merck is still pending.
In the Secrest case, the Second Circuit found no error in a jury verdict in Merck’s favor on the plaintiff’s design defect claim, nor in an order granting summary judgment for Merck on a failure to warn claim. The court’s ruling affirming summary judgment shows the difficulty of proving causation in many failure to warn claims. The plaintiff, the court noted, produced expert testimony from a doctor who prescribed Fosamax before she developed ONJ, but who was not her primary physician, and did not know she was taking the drug, at the time the injury occurred. The court therefore held that the doctor was not in a position to relay warnings from Merck.
The pharmacy error attorneys at Lebowitz & Mzhen can assist Maryland individuals who have been injured by drugs prescribed, dispensed, or administered incorrectly. To schedule a free and confidential consultation to discuss your case, contact us today online or at (800) 654-1949.
More Blog Posts:
Pharmaceutical Company Allegedly Knew of Harmful Fosamax Side Effects as Far Back as 2004, According to Review of Internal Documents: In Re: Fosamax Products Liability Litigation, Pharmacy Error Injury Lawyer Blog, December 5, 2012
Punitive Damages in Maryland Medication Error Litigation: Marsh v. Arnot Ogden Medical Center, Pharmacy Error Injury Lawyer Blog, October 4, 2012
Fosamax Lawsuit in New York May Proceed, but With Limitations, Pharmacy Error Injury Lawyer Blog, September 8, 2011