Nov. 23 (Bloomberg) -- Merck & Co. won dismissal of the second case scheduled for trial over claims its osteoporosis drug Fosamax caused so-called jaw death.

U.S. District Judge John Keenan in Manhattan ruled in Merck’s favor in an opinion today. Keenan said that experts for Bessie Flemings, a Mississippi resident, can’t establish that Fosamax caused her osteonecrosis of the jaw, or ONJ. Flemings’s case was set to go to trial Jan. 12.

“Plaintiff has offered no other evidence to establish that Fosamax caused her to develop ONJ, and therefore her failure-to- warn claim is insufficient as a matter of law,” Keenan wrote.

On Sept. 11, Keenan declared a mistrial in the first case to go to a jury over claims that Merck failed to warn doctors and patients that Fosamax might hamper blood flow to the jaw, causing jawbone-tissue death. The jury in that case couldn’t reach a unanimous verdict.

Merck, based in Whitehouse Station, New Jersey, as of Sept. 30 faced about 953 Fosamax cases, including suits with multiple patients, the company said in a Nov. 2 regulatory filing. About 700 lawsuits have been consolidated before Keenan for evidence gathering.

“I think that this particular decision will have no impact on the remainder of the cases because, as I read it, it’s specific to this case, and I suspect that we’ll probably appeal the ruling,” Robert Germany, a lawyer for Flemings at Pittman, Germany, Roberts & Welsh LLP in Jackson, Mississippi, said in a phone interview.

Severe Osteoporosis

Flemings, 74, was first prescribed Fosamax in December 1997, when she was diagnosed with severe osteoporosis, Keenan wrote. Flemings has a history of medical problems, including chronic obstructive pulmonary disease, and “continues to smoke cigarettes even though she is now dependent on an oxygen tank,” according to Keenan.

Merck has argued that smoking contributes to jaw problems such as ONJ.

One of Flemings’s dentists thought her jaw injury was related to Fosamax, according to a note her family doctor made, Keenan wrote. The dentist testified in a pretrial deposition that he didn’t know what caused the injury, according to Keenan’s opinion.

“We are pleased that the court agreed with us that Ms. Flemings did not present any reliable evidence supporting her claim that Fosamax caused her to suffer ONJ, Paul Strain, a lawyer for Merck, said in a statement. “Unfortunately, Ms. Flemings had medical problems that cause people to develop jaw problems regardless of whether they were taking Fosamax.”

Bellwether Trials

The judge scheduled three so-called bellwether trials that may point the way to out-of-court settlements and will show each side the other’s strategy in the Fosamax litigation. The plaintiff in the first trial, Shirley Boles of Fort Walton Beach, Florida, had sought $1 million in damages. The trial in the third case is scheduled for April.

Sales of Fosamax last year, when it first faced U.S. generic competition, fell by half to $1.55 billion from $3.05 billion in 2007.

As of Sept. 30, Merck set aside $48 million for defending the litigation, according to the regulatory filing. It hasn’t earmarked any money for damages.

Merck fell 4 cents to $36.42 in New York Stock Exchange composite trading at 4:15 p.m. The shares have gained 20 percent this year.

The case is Flemings v. Merck & Co., 06-cv-7631, and the lawsuits are combined in In Re Fosamax Products Liability Litigation, MDL 1789, U.S. District Court, Southern District of New York (Manhattan).

To contact the reporters on this story: Thom Weidlich in New York federal court at tweidlich@bloomberg.net; David Glovin in New York at dglovin@bloomberg.net.

Last Updated: November 23, 2009 19:34 EST