On August 22, 2017 attorneys for Merck filed their Petition For A Writ Of Certiorari, which sets the stage for Merck’s Fosamax appeal to the Supreme Court with the following:
The question presented is: Is a state-law failure-to-warn claim preempted when the FDA rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data; or must such a case go to a jury for conjecture as to why the FDA rejected the proposed warning?
As background, in March 2017 the Third Circuit Court of Appeals decided to reverse a ruling by U.S. District Court Joel Pisano which had dismissed all the federal court Fosamax – femur fracture cases on federal preemption grounds. In turn, hundreds of those Fosamax lawsuits have been reinstated at the trial court level.
From our Drug Injury Watch blog article about that development, “Fosamax – Femur Fracture Lawsuits In Federal Court MDL: March 2017 Appellate Court Ruling Reinstates Lawsuits”:
Essentially, the Third Circuit held that the ultimate question of whether the FDA would have rejected a Fosamax label change by Merck to warn about an increased risk of femur fractures is a question of fact for the jury — rather than for Judge Pisano — to decide….
Certainly the Third Circuit’s ruling on the Fosamax appeals is a positive development for the patients who suffered femur fractures after long-term Fosamax use and filed drug injury lawsuits against Merck.
However, it is just a first step in terms of the Fosamax – femur fracture litigation moving forward. Significantly, at the present time we do not know Merck’s plans regarding any further appeal to the United States Supreme Court.
Now we know, by means of an August 2017 legal filing, Merck wants the U.S. Supreme Court to reverse this appeals court decision reinstating those Fosamax – femur fracture cases.
We will watch to see whether Merck’s request for review of the earlier federal appeals court ruling is granted by the Supreme Court.