The U.S. Court of Appeals for the Third Circuit has overturned the dismissal of multidistrict litigation over femur fractures suffered by users of Merck’s osteoporosis drug Fosamax. The decision gives new life to about 5,000 cases that have been dismissed in federal and state courts, according to plaintiffs’ counsel.
In the case, captioned In re Fosamax Products Liability Litigation, the appeals court vacated a decision below granting summary judgment to Merck on pre-emption grounds, finding the District Court misapplied the U.S. Supreme Court’s 2009 ruling in Wyeth v. Levine. In that case, the Supreme Court held that state-law failure-to-warn claims are pre-empted when there is clear evidence that the Food and Drug Administration would not have approved a warning label that the plaintiff claims was necessary.
