Putting Merck's Latest "Favorable" Fosamax® Ruling In Perspective

While I was off the grid (in the mountains), the very-able Judge Keenan, sitting in Manhattan's federal District courthouse, decided that Merck need not put on a defense in the second of five bell-weather Fosamax^® cases -- individual test cases, if you will.

Before anyone begins to believe that this is the way all -- or even most -- of these cases might turn out, let's take a look at the actual facts in the now-dismissed case. The plaintiff was beset my a wide assortment of smoking-related ills -- and while I do not mean to pass judgment upon her for her personal health choices -- she did make personal choices that would make it a near impossibility that a jury could find Fosamax was the primary cause of her ills.

As such, this was one that almost everyone expected Merck to win -- if it had been tried to a verdict. Again, this one case (probably the one "ringer" -- of the first five -- for Merck) tells us very little about the overall strentgh of the federal Fosamax putative class action claims. It is also proof that "hard facts make bad law". Ms. Flemings is very ill, no doubt -- but it probably is not primarily the fault of Fosamax. Take a look, from Judge Keenan's order (a 22-page PDF file) allowing a dismissal against Merck:

. . . .Plaintiff Bessie Flemings is a 74-year old Mississippi resident who alleges that she developed ONJ in 2006 as a result of taking Fosamax. . . .

Flemings has a history of serious medical problems. Flemings has been smoking cigarettes since she was eight years old. She has long suffered from severe chronic obstructive pulmonary disease (“COPD”) and continues to smoke cigarettes even though she is now dependent on an oxygen tank. Among other health problems, she has congestive heart failure, peripheral vascular disease, and she developed skin cancer on the outside of her mouth.

Flemings was diagnosed with severe osteoporosis in December 1997. That month, her family physician, Dr. Walter Rose (“Dr. Rose”), prescribed Fosamax to treat her osteoporosis. Flemings has fallen several times since she was diagnosed with osteoporosis, fracturing her knee and injuring her back on two such occasions. . . .

As a scientist, I would call these confusing variables. As a lawyer, I would simply say that whatever small additional part Fosamax may have had in aggravating Ms. Flemings' various maladies, it would be fundamentally unfair to give the jury a pen, and a blank sheet of paper, and ask for a finding of damages against Merck, on these facts.

Said another way, there will likely never be any way to discern the extent to which (or whether), Ms. Flemings' jaw difficulties are a by-product of the spread of her cancers, and continued smoking -- or the result of Fosamax-induced bone death.

So -- my object lesson: beware early signals on these bellweathers -- the first, Boles, was a "runaway jury" mistrial; the second was a non-starter. Let's see what the third, fourth and fifth bring.