Wyeth and its new parent Pfizer are probably wishing they had more to be thankful for this week, after being hit with jury awards totaling $103 million over hormone drugs. But what started out as a tough week for Big Pharma got a little better late Monday, when Manhattan federal District Court Judge John Keenan dismissed the second of three bellwether cases facing Merck over its osteoporosis drug Fosamax just weeks before it was set for trial.
Keenan ruled on Monday that the plaintiff in the second test case, a 74-year-old Mississippian named Bessie Flemings, had failed to present admissible evidence of specific causation tying her jaw problems to Fosamax. The case had been set to go to trial in January.
We’re neither doctors nor lawyers, but it strikes us that Flemings’ situation is pretty extreme for a test plaintiff. The opinion stated that, along with osteoporosis, Flemings “has a history of serious medical problems” including congestive heart failure, vascular disease and skin cancer. She has smoked cigarettes since age eight, and continues to smoke despite suffering from chronic obstructive pulmonary disease and being dependent on an oxygen tank to breathe.
But it wasn’t Flemings’ abominable health that finally scuttled her Fosamax claims. Keenan wrote that neither of the dentists who treated her injury and were offered as experts was able to credibly link Flemings’ jaw damage to her use of Fosamax. One of the doctors had no real opinion at all on a possible link, while the other’s opinion was based only on “subjective belief,” the judge wrote.
Merck’s lead lawyer, Venable‘s Paul Stain, was has not available to comment directly, but he issued the following statement through Merck: “We are pleased that the Court agreed with us that Ms. Flemings did not present any reliable evidence supporting her claim that FOSAMAX caused her to suffer ONJ [osteonecrosis of the jaw] … . Unfortunately, Ms. Flemings had medical problems that cause people to develop jaw problems regardless of whether they were taking FOSAMAX.” Merck was also represented by Norman Kleinberg and Theodore Mayer of Hughes Hubbard & Reed in the case. Flemings’ lawyer, Robert Germany of Pittman, Germany, Roberts & Welsh, did not respond to our request for comment.
The Fosamax plaintiffs all claim that their use of the drug for osteoporosis resulted in painful damage to bone in their jaws and that Merck failed to adequately warn about possible complications. Nearly 900 Fosamax cases are consolidated before Keenan, who last September declared a mistrial in the first test case. That case is set to be re-tried in the spring. Trial in the third case is scheduled for April 19. Daniel Osborn of Osborn Law, who represents the plaintiff in that case, was not available for comment on Tuesday.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
