The End Draws Nigh, For Fosamax® Femur Fracture MDL Claims — Materially Good News For Merck

We have expected this, for quite a while now. The femur claims (as distinguished from the ONJ ones) MDL is likely to come out as a complete win for Merck — we have been following it since 2010.

I post yesterday’s ruling so that the kind and gentle folks following the federal Propecia® MDL litigation will be able to see — by analogy — how important the label warnings have become, after the Supremes decided Wyeth v. Levine. From the full order, then (an 18 page PDF file):

. . . .On March 26, 2014, the Court entered judgment as a matter of law dismissing the claims of hundreds of Plaintiffs who allegedly suffered femur fractures prior to September 14, 2010 on preemption grounds. See In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., MDL 2243, 2014 WL 1266994 (D.N.J., Mar. 26, 2014) (the “Preemption Ruling”). The Preemption Ruling is now on appeal to the Third Circuit. . . .

On June 17, 2014, the Court granted summary judgment in favor of Merck in the Gaynor case and found that the 2011 Fosamax warning regarding atypical femur fractures is adequate as a matter of law because it “is accurate, clear, consistent and as a whole conveys a meaning that is unmistakable as it relates to AFFs.” Gaynor v. Merck Sharp & Dohme Corp., Nos. 12-1492, 08-08, 2014 WL 2738224, at* 11 (D.N.J. June 17, 2014). The Gaynor Plaintiff has appealed this ruling to the Third Circuit. . . .

Following the dismissal of Gaynor, the PSC advised the Court by letter and during telephonic status conferences that to the best of their knowledge no Plaintiff is alleging that the 2011 Fosamax label was a proximate cause of his or her injuries and that the adequacy (or inadequacy) of that label has not been placed at issue by any Plaintiff. On November 5, 2014, the Court ordered those Plaintiffs whose cases had not previously been dismissed by the Preemption Ruling and who claim that the warning about AFFs in the January 2011 Fosamax label was inadequate and a proximate cause of their alleged injuries to show cause why their claims should not be dismissed in light of the prior rulings by the Court (the “November 5, 2014 Order”)(Dkt. 3927). The November 5, 2014 Order further provided that if any Plaintiff did not make such a claim, then they would be forever barred, precluded, and estopped from claiming that the January 2011 Fosamax label was inadequate and a proximate cause of their alleged injury. . . .

[T]he Court has determined, after consultation with the PSC, that the claims of all remaining Plaintiffs in this litigation are based on the alleged inadequacy of the pre-2011 Fosamax label. Because the adequacy of the pre-2011 Fosamax label is the issue currently being decided [on appeal] by the Third Circuit, the decision on appeal will determine whether the claims of the remaining Plaintiffs in this litigation (identified in Appendix I hereto) remain viable or not. Consequently, IT IS on this 19th day of June, 2015, ORDERED that the claims of all Plaintiffs listed on Appendix I against Merck are hereby conditionally dismissed without prejudice pending the decision by the Third Circuit on the appeal of the March 26, 2014 Preemption Ruling. . . .

So it goes. So too, on a cool, quiet Saturday — we are actually quite melancholy — about the lunacy of white domestic terrorists/supremecists our nation’s NRA lobby refuses to address in any constructive way. But the mouthpieces for the NRA are first to the fore, when the terror threat is browner, or not born on our soil. Ironic — and tragic. Will the NRA condemn these latest photos of Mr. Roof spitting on, and burning, the stars and stripes? I won’t hold my breath. In fact, one NRA board member blamed the pastor of Mother Emanuel — for the death of the other eight church-goers. That puts NRA Board member Charles Cotton on a par — with the terrorist, himself — in my view. I won’t repeat the tortured reasoning by which Cotton justified his deplorable libel.

At least on Father’s Day, please be better to one another than this. Please. . . .


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