Atlantic City, NJInside the Atlantic City courtroom, lawyers for both plaintiff and defense hit their respective marks in an effort to convince the Fosamax trial jury to see things their way. At issue was whether or not Fosamax could be proven beyond a reasonable doubt to have caused Fosamax osteonecrosis in the jawbone of plaintiff Alison Rosenberg, and whether Merck failed to warn the plaintiff about the risk.
Christy Jones, business-like in a charcoal-gray jacket and dark-rimmed glasses, gestured to the jury that Merck was unaware, at the point that the alleged failure to warn occurred, that Fosamax risked osteonecrosis of the jaw.
The attorney for the defense noted that the manufacturer of Fosamax, at the root of concern over Fosamax side effects, had been scrutinizing Fosamax since 1988 by way of various studies and trials. It was not until 15 years later, in 2003, that the first report of osteonecrosis turned up—and that was in a cancer patient taking alendronate (Fosamax) by way of IV injection. It wasn't until another three years had passed that Merck received further information about the potential for Fosamax osteonecrosis of the jaw (Fosamax ONJ).
Jones also noted that, from the defense point of view, Merck had duly responded to a request for information by Rosenberg's prescribing physician with regard to the plaintiff's bisphosphonate therapy and potential concerns over Fosamax.
In his closing arguments for the plaintiff, attorney Paul Sizemore, clad in a dark suit and crisp white shirt, reminded the jury as to the reason the plaintiff's doctor requested information about Fosamax, in October of 2005. According to arguments for the plaintiff, Dr. Debra Somers had been made aware as to the potential risks associated with Fosamax through her own efforts, and thus had sought clarification from a Merck sales rep with regard to the potential for Fosamax dead jaw. However, the sales rep was, according to Sizemore, not authorized to discuss the issue.
Instead, Merck issued a written response to the physician in October 2005, indicating that in Merck's view there had been no reports associating ONJ with Fosamax use, in spite of acknowledging internally the presence of some 80 adverse reaction reports four months previously, in June of that year. Counsel for the plaintiff noted that Merck had received a report of exposed jawbone as early as 1999.
"We're here because Fosamax killed a piece of Ms. Rosenberg's jaw, and Merck knew it could happen, and didn't warn about it," Sizemore said in his closing arguments, as summarized by the Courtroom View Network (CVN). "Merck knew that this drug could cause jawbone death, and it did, in my client."
The plaintiff, Rosenberg, underwent five surgeries to remove diseased bone in her jaw. And the jury charged with rendering a verdict in the Fosamax dead jaw trial, voted against the first question posed. "Has the plaintiff proven that it is more likely than not that Alison Rosenberg had ONJ?" By a 9-1 voted, the jury voted ''no''—which rendered moot other questions pertaining to Merck's alleged failure to warn. By answering ''no'' to the first question, subsequent questions were not put to the jury at all.
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