In February, a New York federal court jury determined that Merck & Co. Inc. failed to adequately warn plaintiff Rhoda Scheinberg that using Fosamax could cause her to develop osteonecrosis of the jaw. The jury awarded $285,000 in damages to Steinberg.
Judge John Keenan has now rejected a motion for judgment as a matter of law filed by Merck & Co. Inc. The motion asked the court to disregard the jury’s verdict because, Merck claimed, its warning should be considered adequate as a matter of law.
Merck argued that Fosamax’s label was adequate because it specifically warned there was a risk of osteonecrosis of the jaw. Judge Keenan disagreed and ruled that “a warning is not automatically sufficient simply because it includes certain ‘magic words.”
“Merck has emphasized the phrase ‘precise malady,’ while disregarding the other elements set forth in New York,” Judge Keenan said. “The court does not accept that simply because the Fosamax label mentions the malady ‘osteonecrosis of the jaw,’ it is sufficient as a matter of law. Rather, whether the name of the malady incurred by plaintiff was included is but one consideration in evaluating the Fosamax label ‘as a whole.'”
At trial, one of Scheinberg’s expert witnesses had testified that the label did not include information about Fosamax’s limited efficacy. The expert also testified that Merck rejected proposed warning language from the U.S. Food and Drug Administration that was effectively adopted by makers of similar bone drugs, In addition, Scheinberg’s physician testified that she would not have prescribed Fosamax if the label warned that the risk of osteonecrosis of the jaw. According to Judge Keenan, both of these witnesses “testified at length” about the label’s failure to convey the seriousness of the risk. Finding sufficient evidence to support the jury’s verdict, the court denied Merck’s motion.
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* Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2013.