Quoted from http://www.reuters.com/article/2011/08/30/merck-fosamax-idUSN1E77T1IJ20110830
US judge narrows benchmark Fosamax case vs. Merck
By Jonathan Stempel
NEW YORK, Aug 30 (Reuters) - A federal judge on Tuesday threw out part of a bellwether lawsuit against Merck & Co (MRK.N) over claims that its osteoporosis drug Fosamax causes jaw damage.
The plaintiff, Linda Secrest, may pursue her claim that Fosamax suffered from a design defect and caused her jawbone tissue to die, a condition known as osteonecrosis of the jaw, or ONJ, U.S. District Judge John Keenan wrote.
But the judge said Secrest, a former United Airlines flight attendant living in Florida, cannot pursue punitive damages or her claim that Merck failed to warn of possible problems with Fosamax, saying no reasonable jury could rule in her favor.
The lawsuit is the fourth bellwether case over Fosamax, which generated billions of dollars in annual sales for Merck before the Whitehouse Station, New Jersey-based company lost U.S. patent protection in 2008, allowing generic sales.
Results of bellwether cases may foreshadow the potential outcomes of other, similar lawsuits.
Merck has said it faced roughly 1,650 Fosamax-related cases in various courts as of June 30, including 910 before Keenan.
It won two of the earlier bellwether trials, while a jury ordered it to pay $8 million to the plaintiff in the third case.
Keenan later reduced that payout to $1.5 million, prompting the plaintiff, Shirley Boles, to request a new trial on damages. Merck appealed a separate legal issue to the federal appeals court in New York.
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