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Merck Wins First Fosamax ‘Jaw Death’ State-Court Trial

Merck & Co. won the first of hundreds of state-court lawsuits in which its Fosamax osteoporosis drug is blamed for causing so-called jaw death.

Fosamax didn’t cause Alison Rosenberg, 67, of Pennsylvania to develop osteonecrosis of the jaw, or ONJ, a jury in Atlantic City, New Jersey, found today. Merck previously won two of three cases that went to jury verdicts in Manhattan federal court.

The jury answered “no” to the first question on the verdict form: Was it more likely than not that Rosenberg had the condition she claimed? The vote was 9 to 1. Because the first answer meant victory for the company, the panel didn’t have to answer three other questions.

Rosenberg had medical conditions that cause jaw problems and took other medications that suppress immune systems, Merck maintained.

“There’s no evidence of eight weeks of exposed, necrotic, dead bone,” company attorney Christy D. Jones said Feb. 9 in her closing arguments to the jury. “Ms. Rosenberg didn’t meet the definition.”

People can develop ONJ “regardless of whether they were taking Fosamax,” Jones said today after the verdict

“The evidence showed the company acted properly and that Fosamax did not cause the plaintiff’s dental and jaw problems,” she said in a statement.

Rosenberg’s lawyers said they were “deeply disappointed” in the outcome and will decide whether to appeal.

‘Hiding the Risks’

“We would have liked for the jury to find for Mrs. Rosenberg so Merck would know that they can’t keep getting away with hiding the risks of their drugs,” Marc D. Grossman of the firm Sanders Viener Grossman LLP in Mineola, New York, said in a statement.

“We’re here because Fosamax killed part of Mrs. Rosenberg’s jaw,” J. Paul Sizemore of El Segundo, California, another of her lawyers, told the jury last week in his summation.

As of Sept. 30, Merck, based in Whitehouse Station, New Jersey, faced about 1,180 Fosamax cases, including suits with multiple patients, the company said in a November regulatory filing. About 300 cases filed in New Jersey are before Superior Court Judge Carol E. Higbee in Atlantic City.

In the one federal case Merck lost, a New York jury awarded $8 million to the plaintiff. U.S. District Judge John Keenan later reduced the award to $1.5 million. About 850 Fosamax cases are before Keenan.

Seven Hours

The Atlantic City jury deliberated about seven hours over two days, ending a trial that started Jan. 24.

Rosenberg used Fosamax for four years before developing the condition in which bone tissue in the jaw is killed, according to an earlier statement by her attorneys. Her husband, Herbert Rosenberg, 69, also sued, for loss of consortium.

Merck had Fosamax sales of $691.5 million for the first nine months of 2010, down from $814.9 million in the same period the previous year, according to the regulatory filing. The drug first faced generic competition in 2008.

Merck fell 25 cents to $32.82 at 4:15 p.m. in New York Stock Exchange composite trading. The shares have dropped 13 percent in the past year.

Two more so-called bellwether trials, which may point the way to out-of-court settlements and will show each side the other’s litigation strategy, are scheduled for this year in federal court in Manhattan. On Feb. 4, Keenan ordered the parties to pick two additional cases for trial.

The case is Rosenberg v. Merck & Co., ATL-L-3644-08, Superior Court of New Jersey (Atlantic City).

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