Lawyers for Merck & Co. are prepared to put the Fosamax chapter behind them. The company has announced it will pay $27.7 million to settle lawsuits filed by those patients on the osteoporosis drug who suffered necrosis or deterioration of the jaw bone. The settlement will affect nearly 1,200 people who have filed defective product actions in both state and federal courts. The settlement must be agreed to by 100 percent of patients.
At one time the osteoporosis drug was considered a blockbuster bringing in $3 billion in sales for Merck in 2007. Since then revenue has dropped to $421 million as word has spread about its potential to cause bones in the jaw to die.
The settlement amount was announced in U.S. District Court in Manhattan. There Judge John Keenan presides over approximately 860 cases. He has presided over the bellwether trials that test legal theories before a jury. Bellwether cases are frequently heard before any settlement is reached, especially if the jury decides in the plaintiff’s favor. So far in fosamax litigation, Shirley Boles was awarded $8 million. A judge has the discretion to lower any award and in that case did so in her case to $1.5 million. Plaintiff Rhoda Scheinberg was awarded $285,000 in the final bellwether trial. Merck won two cases in New Jersey before juries.
Fosamax belongs to a family of bisphosphonates that includes Reclast, Boniva, Actonel, Zometa, and Atelvia, among others. They work by interfering with the natural process of bone rebuilding and loss. Many experts feel that interference leaves insufficient quality bone. As a result, bisphosphonates have been linked to necrosis of the jaw (ONJ), which is also known a jawbone death and atypical fractures of the femur.
Still undecided is the fate of about 4,115 lawsuits filed by individuals who took Fosamax and suffered a femur fracture.
The order does not affect other bisphosphonates including Actonel and Boniva. No new cases filed after December 9, 2013 will be covered in this settlement.
Last August Judge Keenan ordered about 200 cases a month sent back to their state court. That was seen as a costly move for Merck. That move was only threatened in the Vioxx litigation in 2007, but it led to a $4.85 billion settlement, also with Merck.
Merck may take until May 15th to decide to commit or not to the deal but plaintiffs’ attorneys must alert the court as to their participation by January 13.
The case is Fosamax Products Liability Litigation, U.S. District Court, Southern District of New York, No. 06-md-01789.