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Judge Rules not to Dismiss 24 Fosamax Lawsuits

Sep 10, 2009 | Parker Waichman LLP

Twenty-four Fosamax lawsuits filed by people who took the drug for less than  three years will not be dismissed.   In a ruling released yesterday, U.S. District Judge John Keenan also said that testimony from two plaintiffs' experts is admissible at trial.

Fosamax is one of a number of drugs used to treat osteoporosis known as bisphosphonates. Bisphosphonates have been linked to a side effect known as Osteonecrosis of the Jaw (ONJ). Also known as Dead Jaw Syndrome, ONJ is a condition in which the bone tissue in the jaw fails to heal after minor trauma such as a tooth extraction, causing the bone to be exposed. The exposure can eventually lead to infection and fracture and may require long-term antibiotic therapy or surgery to remove the dying bone tissue. Signs and symptoms of ONJ may include: jaw pain, swelling of the gums, loose teeth, drainage, exposed jaw bone, numbness, or a feeling of heaviness in the jaw.

In 2005, the Food & Drug Administration (FDA) ordered that the label for Fosamax and other bisphosphonates be updated to include warnings about ONJ. Since then, more than 1,200 plaintiff groups have filed 900 Fosamax lawsuits in courts around the country.

Merck & Co. had sought the dismissal of Fosamax lawsuits involving plaintiffs who had taken the drug for less than three years.  But in his ruling, Judge Keenan wrote that whether there is a three- year threshold is a “genuine issue of fact for trial," said.

According to Reuters, Judge Keenan ruled that he would allow plaintiffs to introduce testimony by two doctors to show that the drug can cause jaw damage after less than three years of continuous use.  The judge said that the evidence is sufficiently reliable to allow a rational jury to establish such a connection.

However, the judge also ruled that testimony of a third plaintiffs' expert would not be allowed because the witness had previously said Fosamax doesn’t cause ONJ in patients who take the drug for less than a three year  period.  According to, that witness - Dr. Robert Marx - began changing his stance on the three-year limit in 2008.

Meanwhile, Dow Jones is reporting that  Judge Keenan has also called for a one-day cooling-off period in the first Fosamax lawsuit to go to trial after jury deliberations became tense. On Tuesday, Judge Keenan had asked jurors to continue deliberations after they indicated that they were at an impasse.  But on Wednesday, an attorney for the plaintiff asked for a mistrial, saying one juror had indicated in a note that she was being intimidated and had been threatened, Dow Jones said.  The juror's note claimed she had been the subject of threats of physical violence and had a chair thrown at her.

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