By Nate Raymond
NEW YORK Feb 5 A federal jury on Tuesday ordered Merck & Co Inc to pay $285,000 in a lawsuit over the risks of its osteoporosis drug Fosamax, the second loss for the company after several earlier trials.
The eight-person jury in U.S. District Court in Manhattan found that Merck failed to warn plaintiff Rhoda Scheinberg's doctors of the risks associated with Fosamax. The jury rejected the plaintiff's argument that Fosamax was a defective product.
More than 4,000 lawsuits are pending in federal and state courts arising out of injuries allegedly caused by the one-time blockbuster medication. Seven cases have now gone to trial, and Merck has won five and lost two.
This latest trial was one of the so-called "bellwether" cases in the Fosamax litigation. Judges order bellwethers in mass litigation to assess trends and outcomes that could play out in similar lawsuits. A string of wins by plaintiffs could, for example, give them a stronger hand in settlement talks with defendants to end all of the cases.
Lawyers for Scheinberg, a 69-year-old New York resident, contended Fosamax caused her to suffer delayed healing and a bone disease of the jaw after a tooth extraction. The jury found that Merck's failure to warn of the drug's risks was a cause of her injury.
"With this victory, this litigation has a renewed purpose and a renewed focus," Tim O'Brien, a lawyer for Scheinberg who also represents other plaintiffs in Fosamax lawsuits, said in a statement.
Merck said in a statement that it disagreed with the verdict and noted that the jury returned a mixed verdict.
"Merck provided appropriate warnings, and the plaintiff was at increased risk for dental and jaw problems regardless of whether she was taking Fosamax," said Merck lawyer Chilton Varner of law firm King & Spalding.
The lawsuit, filed in 2008, was one of 975 pending before U.S. District Judge John Keenan in New York after a judicial panel consolidated Fosamax cases alleging jaw-related injuries.
Another 842 lawsuits alleging femur injuries are pending in the U.S. District Court in New Jersey. Other lawsuits are pending in state courts.
The only other Fosamax case that Merck has lost at trial resulted in a $8 million verdict by a federal jury in Manhattan in June 2010 for Shirley Boles, a Florida woman who alleged she developed osteonecrosis of the jaw after taking the drug.
In October 2010, Keenan reduced the verdict to $1.5 million. Merck is appealing the case.
Fosamax had annual sales of $3 billion until its U.S. patent lapsed in 2008 and generic versions flooded the market.
Merck shares were up 53 cents, or 1.3 percent, at $41.38 on the New York Stock Exchange in late afternoon trading.
The case is Scheinberg v. Merck & Co, Inc., U.S. District Court, Southern District of New York, 09-4119.