There Are Over 5,400 Plaintiffs Groups Seeking Fosamax® Relief From Merck — As Of June 30, 2013

Scant surprise here, but the number of Fosamax® cases pending against Merck in the US continues to rise. The latest trendlines are disclosed in Merck’s SEC-filed Form 10-Q, as of this past Thursday. [Prior update here.]

Even so, Merck has been able to rid itself of around 335 plaintiffs’ claims via the Lone Pine order mechanics.

That is, those 335 claimants — all claiming “atypical” injuries — were unable or unwilling to provide a detailed written doctor’s report, with specific explanations of how and when the “atypical” injuries were sustained, and then (the toughest part), an opinion from the doctor that the injuries were related to the claimant’s Fosamax use.

Here is a bit from the Merck SEC Form 10-Q (starting at page 17), but there are no major Fosamax trials left on the calendar in 2013, at this point. The next one will be early 2014 — unless one of the state-court trial calendars loosens up (or Judge Keenan in Manhattan picks a replacement case or two on an expedited basis).

. . . .As previously disclosed, Merck is a defendant in product liability lawsuits in the United States involving Fosamax (the “Fosamax Litigation”). As of June 30, 2013, approximately 5,075 cases, which include approximately 5,440 plaintiff groups, had been filed and were pending against Merck in either federal or state court, including one case which seeks class action certification, as well as damages and/or medical monitoring. In approximately 1,135 of these actions, plaintiffs allege, among other things, that they have suffered osteonecrosis of the jaw (“ONJ”), generally subsequent to invasive dental procedures, such as tooth extraction or dental implants and/or delayed healing, in association with the use of Fosamax. In addition, plaintiffs in approximately 3,940 of these actions generally allege that they sustained femur fractures and/or other bone injuries (“Femur Fractures”) in association with the use of Fosamax. . . .

In August 2006, the Judicial Panel on Multidistrict Litigation (the “JPML”) ordered that certain Fosamax product liability cases pending in federal courts nationwide should be transferred and consolidated into one multidistrict litigation (the “Fosamax ONJ MDL”) for coordinated pre-trial proceedings. The Fosamax ONJ MDL has been transferred to Judge John Keenan in the U.S. District Court for the Southern District of New York. As a result of the JPML order, approximately 855 of the cases are before Judge Keenan. In the first Fosamax ONJ MDL trial, Boles v. Merck, the Fosamax ONJ MDL court declared a mistrial because the eight person jury could not reach a unanimous verdict. The Boles case was retried in June 2010 and resulted in a verdict in favor of the plaintiff in the amount of $8 million. Merck filed post-trial motions seeking judgment as a matter of law or, in the alternative, a new trial. In October 2010, the court denied Merck’s post-trial motions but sua sponte ordered a remittitur reducing the verdict to $1.5 million. Plaintiff rejected the remittitur ordered by the court and requested a new trial on damages. Plaintiff and Merck subsequently entered into a confidential stipulation as to the amount of plaintiff’s damages that enabled Merck to appeal the underlying judgment, and Merck filed its appeal in the Boles case in October 2012. Prior to 2013, three other cases were tried to verdict in the Fosamax ONJ MDL. Defense verdicts in favor of Merck were returned in each of those three cases. Plaintiffs have filed an appeal in two of the cases – Graves v. Merck and Secrest v. Merck. On January 30, 2013, the U.S. Court of Appeals for the Second Circuit affirmed the judgment in Merck’s favor in Secrest. Plaintiff in the Secrest case subsequently filed a petition for a writ of certiorari with the U.S. Supreme Court, but that petition was denied on June 3, 2013. . . .

As ever — we will keep you posted. And we will monitor the oral argument tomorrow morning, via web. Be excellent to one another!

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