Judge Pisano's Rulings About Merck's Pre-September 2010 Fosamax Label And Its Subsequent Revised Fosamax Label Are Being Challenged By The Plaintiffs
(Posted by Tom Lamb at DrugInjuryWatch.com)
UPDATE: On March 22, 2017 the Third Circuit Court of Appeals reversed the dismissal by U.S. District Court Joel Pisano of all the pending federal court Fosamax - femur fracture cases nationwide on federal preemption grounds. The Third Circuit significantly held that the ultimate question of whether the FDA would have rejected a Fosamax label change by Merck for the increased risk of femur fractures is a question of fact for the jury, rather than for the court, to decide.
We are drawing from this Merck corporate SEC filing, "Form 10-Q, For the quarterly period ended September 30, 2014" (at pp. 20-21 of PDF file), for this update on the Fosamax - femur fracture lawsuits.
While most of these drug injury lawsuits filed against Merck are pending in the New Jersey state court system -- as of September 30, 2014, approximately 2,920 cases, according to Merck -- we are going to focus on what is going on currently in the federal court Fosamax MDL for femur fracture cases.
Federal District Court Judge Joel Pisano is presiding over this Fosamax MDL. And from the most recent Merck Form 10-Q SEC filing we get these facts about what has been going on in that litigation:
[O]n March 26, 2014, Judge Pisano issued an opinion finding that all claims of the approximately 650 plaintiffs who allegedly suffered injuries prior to September 14, 2010 were preempted and ordered that those cases be dismissed. The majority of those plaintiffs are appealing that ruling to the U.S. Court of Appeals for the Third Circuit. Furthermore, on June 17, 2014, Judge Pisano granted Merck summary judgment in the Gaynor v. Merck case and found that Merck’s updates in January 2011 to the Fosamax label regarding atypical femur fractures were adequate as a matter of law and that Merck adequately communicated those changes. The plaintiffs in Gaynor have appealed Judge Pisano’s decision to the Third Circuit. In August 2014, Merck filed a motion requesting that Judge Pisano enter a further order requiring all remaining plaintiffs in the Fosamax Femur Fracture MDL to show cause why their cases should not be dismissed based on the court’s preemption decision and its ruling in the Gaynor case that the 2011 Merck label is adequate as a matter of law. Plaintiffs have opposed that motion and asked the court to stay the remaining cases in the Fosamax Femur Fracture MDL until the Third Circuit rules on their appeal of Judge Pisano’s preemption decision. In September 2014, Judge Pisano also ordered the parties to participate in a mediation process.
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One other thing to report is the possibility of a Fosamax - femur fracture trial in the first part of 2015 out in Orange County, California. The presiding judge for this California consolidation -- as of September 30, 2014, approximately 520 cases, according to Merck -- is Judge Thierry Colaw. From the above-referenced Merck SEC filing:
In March 2014, the court directed that a group of 10 discovery pool cases be reviewed through fact discovery and subsequently scheduled the Galper v. Merck case as the first trial for February 2015. Two additional trials are scheduled for May and July 2015.
For background, here are the last two updates on this litigation:
- End Of Summer 2014 Update: Fosamax - Femur Fracture Lawsuits In The New Jersey Consolidation / Multicounty Litigation
- June 2014 Fosamax - Femur Fracture Litigation Update: Thousands Of Cases Pending, But No Trial Dates Currently Scheduled In Federal Court MDL Nor New Jersey Multicounty Litigation
We will continue to monitor the Fosamax - femur fracture cases in the federal court MDL as well as New Jersey and California litigations for significant developments, which will be reported here.
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