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Judge narrows benchmark Fosamax case vs. Merck

By Jonathan Stempel

NEW YORK (Reuters) - A federal judge on Tuesday threw out part of a bellwether lawsuit against Merck & Co over claims that its osteoporosis drug Fosamax causes jaw damage.

The plaintiff, Linda Secrest, may pursue her claim that Fosamax suffered from a design defect and caused her jawbone tissue to die, a condition known as osteonecrosis of the jaw, or ONJ, District Judge John Keenan wrote.

But the judge said Secrest, a former United Airlines flight attendant living in Florida, cannot pursue punitive damages or her claim that Merck failed to warn of possible problems with Fosamax, saying no reasonable jury could rule in her favor.

The lawsuit is the fourth bellwether case over Fosamax, which generated billions of dollars in annual sales for Merck before the Whitehouse Station, New Jersey-based company lost U.S. patent protection in 2008, allowing generic sales.

Results of bellwether cases may foreshadow the potential outcomes of other, similar lawsuits.

Merck has said it faced roughly 1,650 Fosamax-related cases in various courts as of June 30, including 910 before Keenan.

It won two of the earlier bellwether trials, while a jury ordered it to pay $8 million to the plaintiff in the third case.

Keenan later reduced that payout to $1.5 million, prompting the plaintiff, Shirley Boles, to request a new trial on damages. Merck appealed a separate legal issue to the federal appeals court in New York.

Timothy O'Brien, a lawyer representing Secrest and Boles, said in an email that the same claims were dismissed in both cases, and that the $8 million Boles verdict was based solely on a defective design claim.

Merck spokesman Ron Rogers said: "We are satisfied with today's ruling, and we will vigorously defend the company on the remaining claim."

Secrest had claimed her use of Fosamax from 1998 to 2005 caused her to develop ONJ, and that she also suffered other injuries in her jaw and oral cavity.

In his 42-page decision, Keenan said there was no evidence that Secrest's prescribing doctor would have told her to stop using Fosamax in 2004 and 2005, at the time of her alleged injury, had Merck included a warning on its label.

The judge also said punitive damages were inappropriate because no reasonable jury could conclude that Merck breached any legal duty either intentionally or with a "conscious disregard or indifference" to its customers' health.

Merck's sales of Fosamax fell to $926 million in 2010 from $3.05 billion in 2007, prior to the start of generic sales.

The case is Secrest v. Merck & Co, U.S. District Court, Southern District of New York, No. 06-6292. The main case is In re: Fosamax Products Liability Litigation in the same court, No. 06-md-1789.

(Reporting by Jonathan Stempel; Editing by John Wallace and Tim Dobbyn)

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