Merck & Co. Inc. has agreed to pay $27.7 million to settle hundreds of lawsuits claiming its bone drug Fosamax caused a condition known as osteonecrosis of the jaw (ONJ). The settlement agreement includes the claims of about 1,200 plaintiffs in federal and state court. It comes after U.S. District Judge John Keenan ordered the parties to transfer 200 cases per month out of the multidistrict litigation (MDL) and into their home courts. No such transfer had occurred when the settlement was reached.
Since the litigation began in 2005, seven bellwether trials have gone to verdict, with Merck winning five, according to the drugmaker. The company was hit with verdicts of $285,000 and $8 million, though Judge Keenan later slashed the larger award to $1.5 million. The settlement does not include allegations that Fosamax causes femur fractures. Those claims were centralized in New Jersey federal court in separate multidistrict litigation.
The settlement agreement is contingent on a 100 percent participation rate. Plaintiffs lawyers must accept the settlement terms by Jan. 13 and deliver releases for 100 percent of the Plaintiffs by March 31. If they do not do so, Merck has the right to terminate the agreement. Plaintiffs must document that they have osteonecrosis of the jaw and that they used Fosamax. The Plaintiffs’ Steering Committee (PSC) is responsible for allocating the settlement among the eligible claimants. The $27.7 million figure includes attorneys’ fees and all the Plaintiffs’ medical liens.
After the final bellwether trial concluded earlier in 2013, the parties discussed how to wind down the multidistrict litigation. The PSC proposed that Judge Keenan send 300 cases to their home courts every four months, an average of 75 cases a month. Merck proposed conducting case-specific fact discovery in the 100 oldest cases in a six-month period before transfers would occur. Ultimately, Judge Keenan decided to transfer the cases out of the litigation at an even faster pace than proposed by the Plaintiffs. The first transfers were originally scheduled to take place in November, but the judge delayed the deadline at the Plaintiffs’ request. If all Plaintiffs’ counsel do not agree to the deal, the cases could start being transferred in January.
The agreement includes neither the four bellwether cases currently on appeal nor claims against other manufacturers for similar drugs that allegedly caused osteonecrosis of the jaw. It also does not include already settled claims.
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