A federal judge overseeing consolidated litigation against Merck & Co over jaw injuries allegedly caused by the osteoporosis drug Fosamax has ordered hundreds of cases be dispersed to courts across the country for trial.
The decision by U.S. District Judge John Keenan in Manhattan marks an unusual and potentially costly development for Merck.
Companies often find it easier to reach settlements in mass tort cases that are consolidated before one judge.
“It’s a big deal as it changes the cost paradigm for Merck exponentially,” said Timothy O’Brien, a partner at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor and lawyer representing Fosamax plaintiffs.
The judge’s order Thursday requires that 200 cases per month be sent to back to courts where they were initially filed, beginning with the oldest ones.
Lainie Keller, a spokeswoman for Merck, said the company “is committed to defending its conduct in regard to Fosamax and has confidence in its defense strategy that has had so much success in the courts.”
The cases before Keenan comprised roughly one-fifth of the 5,075 lawsuits pending nationally in federal and state courts related to Fosamax, a one-time blockbuster medication.
Lawsuits alleging that plaintiffs developed osteonecrosis of the jaw from Fosamax were consolidated before Keenan in 2006.
The judge conducted a series of “bellwether” trials, allowing the parties to assess trends and outcomes in similar cases. A series of wins for plaintiffs, for example, can put them in a better position for settlement talks.
The final Fosamax bellwether trial before Keenan ended in February with a $285,000 verdict for plaintiff Rhoda Scheinberg.
Merck lost just one other of the five bellwether trials before Keenan, when a jury in 2010 awarded Florida resident Shirley Boles $8 million, a sum the judge reduced to $1.5 million.
Keenan’s order on Friday came after mediation to resolve 370 cases broke down two weeks ago. O’Brien’s law firm and another firm represented plaintiffs in those cases.