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Rottenstein Law Group Disappointed by Virginia Supreme Court Ruling Likely to Dismiss Four Federal Fosamax Bisphosphonate Drug Lawsuits


(New York, NY, March 13, 2012) The Rottenstein Law Group, which represents clients with claims stemming from the severe side effects of the bisphosphonate drug Fosamax, has learned with some disappointment of a significant setback to four individual lawsuits against Merck & Co., Inc., the drug’s manufacturer.
In September 2005, a putative class of plaintiffs filed a class action lawsuit against Merck in federal court in Tennessee. When all federal Fosamax lawsuits were consolidated for purposes of pretrial procedures, the Judicial Panel on Multidistrict Litigation transferred the consolidated cases to the United States District Court for the Southern District of New York.
The federal court in New York denied class certification and dismissed the putative class action in January 2008. Before this dismissal, however, four intended class members, each a resident of Virginia, filed an individual action (based in state-law claims) against Merck in the Southern District of New York (asserting federal jurisdiction based on diversity of citizenship).
Merck moved for dismissal of the individual cases, arguing that they were time-barred by the applicable law, being that each case was commenced more than two years after the latest possible date that each respective plaintiff had sustained his or her alleged injuries. The District Court granted Merck’s motion, dismissing the four cases. The plaintiffs appealed the dismissals to the United States Circuit Court for the Second Circuit, arguing (as they had done unsuccessfully to the District Court) that the time to start a lawsuit was tolled while the putative class action was being considered for approval.
The Second Circuit determined that Virginia law governed the circumstance and accordingly asked Virginia’s highest court to advise it. The Virginia Supreme Court has now ruled, in an opinion issued on March 2 in Casey v. Merck, Record No. 111438, that “Virginia recognizes neither equitable nor statutory tolling due to the pendency of a putative class action in another jurisdiction.” In other words, the four individuals are not likely to have their day in court.
Despite being the most popular osteoporosis treatment on the market, Fosamax has been linked to several serious side effects. In 2004, researchers found a causal connection between Fosamax and osteonecrosis of the jaw, a condition that causes the jawbone to literally die because of a lack of blood supply. More recently, there has been a link between Fosamax and low-impact femur fractures experienced from standing height or less. Evidence is mounting that Fosamax and other bisphosphonate drugs prescribed to treat osteoporosis cause a dramatic increase in the risk of this kind of rare fracture to the thigh bone.
The Rottenstein Law Group advises anyone with a friend or family member who has been prescribed Fosamax or another osteoporosis drug to recommend to that person that he or she consult a physician immediately, then speak to a qualified Fosamax lawyer. The Rottenstein Law Group lawyers have a total of more than 25 years of experience fighting for the rights of clients who have suffered harm due to the negligence of powerful corporations.  Affected individuals are advised to keep apprised of the latest news concerning the Fosamax femur fracture lawsuits by checking the Fosamax Femur Fracture Lawsuit Information Center for updated information. The site is equipped with easy-to-use social media features which will enable users to spread the word about the dangers of Fosamax.
About the Rottenstein Law Group
The Rottenstein Law Group is a New York-based law firm that represents clients in mass tort actions. The firm was founded by Rochelle Rottenstein, a lawyer with over two decades of experience in compassionate representation of clients in consumer product injury, mass tort, and class action law suits. For more information, please visit their Web site, or call (888) 9-ROT-LAW.


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