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Merck Denied Access to Plaintiff Doctors in Fosamax Bone Fracture Lawsuits

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May 15, 2012 – A federal judge has barred pharmaceutical giant Merck & Co. from contacting the doctors of patients who have filed Fosamax bone fracture lawsuits. Citing physician-client privilege, Judge Joel A. Pisano stated that it would be inappropriate for the company to directly contact plaintiff physicians in any way outside the presence of their attorneys. Pisano is overseeing all federal Fosamax bone fracture lawsuits that have been consolidated as part of a multidistrict litigation (MDL) in the U.S. District Court for the District of New Jersey.

Fosamax Femur Fracture Update 3/13/13: A new study has identified a causal link between Fosamax and nonhealing femur fractures. The research, which was published in last month’s edition of the Journal of Bone & Joint Surgery, found that nonhealing femur fractures are not just associated with Fosamax and other diabetes drugs, but directly caused by them.

 

What’s the problem?

Judge Pisano’s order came in response to a petition filed by Merck requesting ‘ex parte’ communication with physicians whose clients have filed Fosamax bone fracture lawsuits. Merck also sought permission to limit plaintiffs’ ability to consult their physicians outside the presence of the company’s legal counsel. Pisano ruled against Merck in a court filing issued on May 2.

To date, hundreds of Fosamax bone fracture lawsuits have been filed against Merck in courthouses around the country. These complaints allege that the drugmaker failed to adequately research their blockbuster osteoporosis drug, or warn about the risk of bone fractures and breaks associated with it, the majority of which occur with little or no trauma.

In rejecting Merck’s request, Pisano cited the protected relationship between doctors and their patients. The judge stated that while his decision may seem one-sided and unfair at first, the ruling is actually very even-handed. He noted that Merck “still has access to the information it seeks by way of a variety of mechanisms” such as depositions and plaintiff profile forms.

First approved by the U.S. Food & Drug Administration (FDA) in 1995, Fosamax is the most widely-prescribed bisphosphonate drug in the United States. The blockbuster medication consistently generated sales of over $3 billion a year until it became available as a generic in 2008. Unfortunately, over the past several years Fosamax has been repeatedly linked to atypical femur fractures that occur after falls from standing height or less, events that would not usually cause the bone to break.

Following a comprehensive investigation by the FDA, Merck was required in October 2010 to add new bone fracture warnings to Fosamax labels. Earlier this week, federal health regulators published a review noting that they found no overall long-term benefits to taking bisphosphonates like Fosamax, Actonel, and Boniva.

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