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Merck Wins Summary Judgment in Second Federal Bellwether Case Involving FOSAMAX® (alendronate sodium)


WHITEHOUSE STATION, N.J., Merck said today that U.S. District Court Judge John F. Keenan granted summary judgment in Merck’s favor in Flemings v. Merck. Flemings is the second of three cases involving FOSAMAX (alendronate sodium) designated by the federal MDL court as a bellwether trial case.

In granting summary judgment in Flemings and dismissing all of the plaintiff’s claims, Judge Keenan ruled that the physician relied upon by Ms. Flemings (Dr. Rose) was unqualified to render an opinion and that Ms. Flemings failed to present sufficient evidence to support her contention that FOSAMAX caused her to sustain osteonecrosis of the jaw (ONJ).

“It is clear that Dr. Rose’s opinion is derived from a ’subjective belief’ rather than from scientific knowledge and methodologies,” wrote Judge Keenan. “Dr. Rose is not qualified as an expert under Rule 702 and his opinion is inadmissible under Daubert. 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.”

“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,” said Paul Strain of Venable LLP, outside counsel for Merck. “Unfortunately, Ms. Flemings had medical problems that cause people to develop jaw problems regardless of whether they were taking FOSAMAX.”

Merck is represented in the Flemings case by Venable LLP and Hughes Hubbard & Reed LLP.

Status of Litigation
As of September 30, 2009, approximately 953 cases, which include approximately 1334 plaintiff groups had been filed and were pending against Merck in either federal or state court.

The first MDL bellwether case -- Boles v. Merck – previously resulted in a mistrial after several days of jury deliberations because the eight person jury did not reach a unanimous verdict. Merck has filed a pending post-trial motion in Boles asking Judge Keenan to enter judgment in Merck’s favor. Boles was plaintiffs’ top choice for bellwether designation and Judge Keenan selected randomly Flemings.

The third MDL bellwether case, Maley v. Merck, which was chosen by Merck, is currently scheduled to begin on April 19, 2010.


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