Federal Appeals Court Rejects Merck's Legal Defense of Federal Preemption in September 2024
(Posted by Tom Lamb at Drug Injury Watch)
A federal appeals court ruled in September 2024 that more than 500 plaintiffs should have their Fosamax femur fracture drug injury lawsuits reinstated and sent back to the current judge presiding over the federal court Fosamax MDL litigation.
Specifically, the United States Court of Appeals for the Third Circuit issued this opinion, In re: Fosamax (alendronate sodium) Products Liability Litigation, No. 22-3412, (3d Cir. Sept. 20, 2024).
As a result of that September 20, 2024 ruling by a unanimous panel of the US Third Circuit appellate court, those femur fracture drug injury lawsuits pending against defendant Merck in the federal court Fosamax MDL litigation are going to U.S. District Judge Karen Williams for potential future trials.
For a summary of this long-running Fosamax femur fracture litigation as regards the legal defense of federal preemption we get the following information from a Reuters news report by Brendan Pierson, "Court revives more than 500 lawsuits over Fosamax femur fracture risk":
The federal litigation stretches back to 2008, and has now been dismissed and revived twice. All of those decisions have hinged on the issue of federal preemption - whether the federal law governing what pharmaceutical companies are required to put on drug labels overrides, or preempts, state law claims that the label fails to warn consumers.
Merck has argued that it does, saying that in 2009 it proposed adding a warning about femur fractures but was initially rejected by the FDA. The warning was eventually added in 2011.
Now-deceased U.S. District Judge Joel Pisano in Trenton, New Jersey, ruled in Merck's favor on the preemption issue in 2013, but the 3rd Circuit overturned that ruling in 2017, concluding that issue should have been decided by a jury.
The U.S. Supreme Court in 2019 ordered the issue reconsidered once again, saying it was a legal issue for a judge, not a jury.
In 2022, U.S. District Judge Freda Wolfson, who had taken over the case [but has since retired], again sided with Merck on preemption.
The 3rd Circuit on [September 20, 2024], however, again reversed. It said that, even though the FDA had not approved the specific warning proposed by Merck in 2009, it would not necessarily have rejected any warning about femur fractures.
While this recent Third Circuit ruling allows the plaintiffs who filed these federal court femur fracture lawsuits to get a jury trial in the future, there are several other possible courses this Fosamax litigation could take from here.
One possibility is that Merck could decide to settle this set of federal court Fosamax lawsuits or, perhaps, all of the remaining Fosamax femur fracture drug injury lawsuits. "About 3,115 lawsuits over Fosamax were pending against Merck in both federal and state courts around the country as of June 30", according to the above Reuters news report.
A second possibility, perhaps more likely given the history of this Fosamax femur fracture litigation, is that Merck will appeal this latest ruling on their legal defense of federal preemption issue to the US Third Circuit sitting en banc or even up to the US Supreme Court.
We will continue to monitor this long-running Fosamax femur fracture litigation and keep you informed of significant developments.
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