Bottom Line Is That The Fate Of These Lawsuits Against Merck Is In The Hands Of The U.S. Court of Appeals For The Third Circuit
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.
For more about this significant ruling, see: "Fosamax - Femur Fracture Lawsuits In Federal Court MDL: March 2017 Appellate Court Ruling Reinstates Lawsuits"
Back in June 2015 U.S. District Judge Freda Wolfson of the District of New Jersey dismissed the last remaining cases in the Fosamax - femur fracture federal court MDL. However, those cases -- as well as some earlier dismissed Fosamax lawsuits concerning femur fractures -- could be reinstated if plaintiffs win an appeal currently pending before the U.S. Court of Appeals for the Third Circuit.
And since that time the federal court Fosamax MDL has been in a "holding pattern" while the parties wait for the appellate court to issue rulings on at least two appeals regarding the Fosamax label, or package insert, information about the femur fracture side effect. And for the New Jersey state court Fosamax litigation, it appears that the presiding judge is content on waiting for the federal appellate court rulings to be issued.
One of the main legal issues in those pending appeals is whether Merck could have strengthened the Fosamax drug label warnings about this apparent femur fracture side effect.
For additional information about this situation, see this article "Lawyers For Plaintiffs And Drug Company Merck Make Their Arguments To Third Circuit Appeals Court In Fosamax - Femur Fracture Litigation", from January 2016.
The little bit of "new" information about the Fosamax - femur fracture litigation comes from Merck's Form 10-Q SEC filing for the quarterly period ended June 30, 2016 (at pages 18-19 of this 55-page PDF document):
As previously disclosed, Merck is a defendant in product liability lawsuits in the United States involving Fosamax (Fosamax Litigation). As of June 30, 2016 , approximately 4,400 cases are filed and pending against Merck in either federal or state court.... [P]laintiffs in approximately 4,380 of these actions generally allege that they sustained femur fractures and/or other bone injuries (Femur Fractures) in association with the use of Fosamax.... [NOTE: This means the total number of pending femur fracture lawsuits filed against Merck is down 25, from 4,405 as of 3/31/16.]
As of June 30, 2016 , approximately 20 cases were pending in the Femur Fracture MDL, excluding the 515 cases dismissed with prejudice on preemption grounds that are pending appeal and the 520 cases dismissed without prejudice that are also pending the aforementioned appeal. [NOTE: These Fosamax MDL case total numbers are the same as they were as of 3/31/16.]
As of June 30, 2016 , approximately 3,020 cases alleging Femur Fractures have been filed in New Jersey state court and are pending before Judge Jessica Mayer in Middlesex County. [NOTE: This total number of New Jersey cases is down 20, from 3,040 as of 3/31/16.]
As of June 30, 2016 , approximately 295 cases alleging Femur Fractures have been filed and are pending in California state court. A petition was filed seeking to coordinate all Femur Fracture cases filed in California state court before a single judge in Orange County, California. . [NOTE: This total number of California cases is down 5, from 300 as of 3/31/16.]
We do not know the disposition of those cases that have gone away, i.e., been dropped by plaintiffs who have given up or settled by Merck (which seems unlikely).
The reality is that this Fosamax - femur fracture status update sounds all too similar to the last one, and the one before that, etc.
We remain on the look-out for developments in this long-running Fosamax litigation, and we ask you to share with us anything which you might know about these femur fracture cases.
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