Third Circuit Reinstates Failure to Warn Claims in Fosamax Litigation

Third Circuit Reinstates Failure to Warn Claims in Fosamax Litigation

The U.S. Court of Appeals for the Third Circuit has held that the district court erred in granting summary judgment to drug maker Merck in hundreds of consolidated suits alleging that Merck’s osteoporosis drug Fosamax caused them to suffer serious thigh bone fractures. The district court held that the plaintiffs’ failure to warn claims were preempted by federal law. The Third Circuit disagreed, holding that “a reasonable jury could conclude that Merck could have amended the Fosamax label via the [Changes Being Effected] process” and that “a reasonable jury could also conclude that the FDA rejected Merck’s proposed warning about femoral fractures in 2009 not because it denied the existence of a causal link between Fosamax and fractures, but because Merck repeatedly characterized the fractures at issue as ‘stress fractures’ [rather than atypical femoral fractures].” [3/23/17]

 

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