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Pharmaceutical Giant Merck Ordered into Mediation

Wednesday, September, 17, 2014

After litigation that has lasted more than eight years, a federal judge in New Jersey ordered pharmaceutical company Merck & Co. and various litigants involved in a suit over Merck’s drug Fosamax into mediation, stating that the stalemated litigation proceedings suggested that it was the right time to head to the negotiating table.


The lawsuit alleges that Fosamax, a drug used to treat osteoporosis, came packaged with a label that insufficiently warned users that they would experience a heightened risk of femur fracture while taking the drug.  Merck altered its labels in 2011 as a result of the suits, and a separate lawsuit filed after that date found the redesigned label addressed the concerns.  There are nearly 900 separate cases tied to the enormous lawsuit.


Complicating matters, the Food and Drug Administration had refused to allow Merck to alter the label prior to 2011, which Merck has seized on as a reason to dismiss the suits.  In other suits filed against Merck concerning Fosamax, it’s alleged that users of the drug developed a condition called Osteonecrosis of the Jaw (ONJ) colloquially known as “jaw death.”


The mediation is expected to go in Merck’s favor, as the slow rendering of decisions in the cases has shown favor to the pharma giant.  Merck’s motivation to settle would be purely financial, as it can reasonably expect judgments to be in its favor going forward.  However, settling would be more affordable than paying court costs for the next several years.