Two More Bellwether Trials Ordered for Fosamax Dead Jaw

February 23, 2011, 08:00:00AM. By Gordon Gibb

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Manhattan, NY: The recent loss by a plaintiff in state court over a Fosamax lawsuit may have been fuelled by insufficient evidence, according to a story appearing February 15 in the Philadelphia Enquirer. The jury in the Atlantic County Superior Court room had no valentines in mind for plaintiff Alison Rosenberg, 67, when they found for the defendant Merck on February 14.

The Fosamax manufacturer had argued that the plaintiff suffered from various oral health problems, with drugs Rosenberg had been taking for those various health issues which led, in their view, to the plaintiff's jaw issues and not Fosamax. The defendant maintained throughout the three-week trial that Rosenberg's condition did not meet the medical definition for Fosamax osteonecrosis.

The news report mused that the jury, which deliberated for seven hours over two days, appeared to have found the evidence insufficient to prove conclusively that the plaintiff's use of Fosamax over a seven-year period starting in 1999 caused the eventual death of a portion of her jawbone following a tooth extraction in March, 2005.

It has been alleged that Fosamax osteonecrosis of the jaw, or Fosamax ONJ, is often triggered by dental work.

For its deliberations, the jury had been asked to consider four questions. However, only the first question was dealt with (the other three questions were not identified.) Whether or not the remaining three questions would be deliberated and answered, would depend on the outcome of the first question. A negative verdict would, according to the Court, make the three remaining questions moot.

That's what happened in this Fosamax dead jaw case. The first question asked whether it was more likely than not that the plaintiff had osteonecrosis as she claimed. The jury answered "no."

End of story. Also end of lawsuit. It is not known if the plaintiff will appeal.

The verdict came the same day as new research appeared in the Journal of Dental Research. Funded by the National Institutes of Health, the study determined that bisphosphonates such as Fosamax used to treat osteoporosis were found to be "associated with a slightly elevated risk" of developing ONJ.

According to Tom Lamb writing in DrugInjuryWatch.com on February 8, the judge overseeing the Fosamax multi-district litigation (MDL) has requested two additional bellwether cases with regard to Fosamax jaw in federal court. The Honorable John F. Keenan of the Southern District of New York has asked for case selection by April 15. In the meantime, there are Fosamax trials pending that will be watched closely: Secrest v. Merck will go to trial in March, and Hester v. Merck in May. The Rosenberg case was litigated in state court.

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