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Fosamax® Lawsuit Ends in Mistrial

Mistrial Declared in First Fosamax® Lawsuit Against Merck

September 14, 2009 -- The first trial against Merck over the osteoporosis drug Fosamax® ended in a mistrial Friday, September 11. The jurors had the case since September 2nd and were unable to come to a unanimous decision on whether Fosamax® caused the "jaw death" (osteonecrosis) of Florida resident Shirley Boles. As the first of three bellwether trials, the decision from the Bole's trial would have impacted the future of all Fosamax® cases. There are an estimated 900 pending Fosamax® cases, with an estimated 700 lawsuits that have been consolidated before U.S. District Judge John Keenan for evidence gathering.

The plaintiff said she used Fosamax® from 1997-2006 and by 2003 had developed osteonecrosis of the jaw. Her lawsuit claims that Merck (purchaser of Schering-Plough Corp.) misrepresented the drug's safety and failed to warn both doctors and patients that it may inhibit blood flow to the jaw--ultimately leading to jaw death. Attorneys for Boles said they would prepare her case for a retrial.

Judge Refuses to Dismiss 24 Fosamax® Lawsuits

Merck motioned to dismiss 24 other lawsuits that claimed Fosamax® caused osteonecrosis of the jaw (jaw death) in patients who took Fosamax® for less than three years. Judge Keenan released a ruling on September 9, refusing to dismiss the lawsuits, saying that whether or not there is a three-year threshold is a "genuine issue of fact for trial."

"This simply reflects what's been known in the science for a while now, that there is no magic window where a patient can be automatically said to be safe from developing ONJ after beginning Fosamax®," Tim O'Brien, one of the plaintiffs' lawyers, said of Keenan's ruling.

Keenan also ruled that plaintiffs' expert witness Robert Marx cannot testify on the three-year issue, as he had previously stated that Fosamax® doesn't cause osteonecrosis in patients that take the drug for less than three years. However, testimony from other plaintiffs' experts will be admitted, as they had not offered an opinion on the time limit.

Fosamax® - A Brief Overview

The issues surrounding Fosamax® are anything but new. The articles below explain in further detail the potential damage and side effects that patients taking Fosamax® can experience.

  • Fosamax®: A Bone-Building Drug that Can Damage the Jaw - First approved for sale in September, 1995, Fosamax® is in the group of drugs known as bisphosphonates. Dentists and oral surgeons began to notice the connection between bisphosphonates and jaw osteonecrosis as early as 2001.
  • The Dentist's View: Fosamax® and Jaw Decay - Osteonecrosis of the jaw was once rare, but dentists are seeing more cases since Fosamax® and chemically similar compounds have come into use. In osteonecrosis, portions of the jawbone become exposed or the jawbone may be completely destroyed. Patients with jaw osteonecrosis do not heal well after any invasive dental procedures.
  • Merck Loses Legal Bid to Dismiss 24 Fosamax® Lawsuits - Bloomberg reports on Merck's efforts to have Fosamax® cases dismissed, updating as new information becomes available.
  • Merck Case Over Fosamax® Ends in Mistrial in New York - Coverage of breaking news on the first Fosamax® trial.

Legal Assistance for those Injured by Fosamax®

Brayton Purcell has over 25 years experience advocating for the rights of consumers, and holding those accountable for unnecessarily putting the health and safety of the general public at risk. We are currently evaluating potential cases where patients prescribed Fosamax® developed osteonecrosis of the jaw ('jaw death'). If you have been injured and would like to discuss your legal options, please contact us with your questions.

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