Over the past year, Merck & Co. has had a good run in fighting off plaintiffs saying the company’s osteoporosis drug Fosamax caused health problems—claiming victory in five of the seven cases to go to trial. But, the company’s victory has been knocked down by recent multidistrict litigation.
Merck has agreed to pay $27.7 million to settle hundreds of lawsuits claiming Fosamax caused osteonecrosis of the jaw. The company made the offer in a New York court this week in order to lay to rest around 1,200 lawsuits pending across the country.
If the settlement is approved by a judge it would clear a large portion of the 5,255 product liability cases Merck is facing, with the remainder relating to problems with other bone injuries such as femoral fractures. The agreement includes the claims of over 1,200 plaintiffs in both federal and state court. It comes after U.S. District Judge John Keenan ordered the parties to transfer 200 cases per month out of the multidistrict litigation and into their home courts, though the transfer has not yet occurred.
Since the litigation started in 2005, the company was hit with verdicts of $285,000 and $8 million, though Judge Keenan later slashed the larger award to $1.5 million.
“We are pleased with this resolution of the ONJ litigation, and we continue to be committed to the vigorous defense of these cases,” a spokesperson for Merck said in a statement. “Above all, we will continue to always act in the best interest of patients. We remain confident in the efficacy and safety profile of Fosamax, which was developed and studied carefully by dedicated Merck scientists.”
According to Merck, the agreement is contingent on a 100 percent participation rate. Plaintiffs counsel must accept the deal's terms by January 13 and deliver releases for 100 percent of the plaintiffs by March 31. If they do not do so, Merck has the right to terminate the agreement. Additionally, plaintiffs must document that they have osteonecrosis of the jaw after using Fosamax.
After the final trial concluded earlier this year, the parties discussed how to conclude the multidistrict litigation. The plaintiffs steering committee proposed that Judge Keenan send 300 cases to their home courts every four months, an average of 75 cases a month. Merck proposed conducting case-specific fact discovery in the 100 oldest cases over a six-month period before transfers would occur.
Ultimately, Judge Keenan decided to transfer the cases out of the litigation at a faster pace than proposed by the plaintiffs. The first transfers were originally scheduled to take place November 1, but the judge delayed the deadline at the plaintiffs' request.
Fosamax was once a huge earner for Merck, bringing in sales of $3 billion at its peak in 2007 before losing patent protection in 2008.
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