Nearly one month ago, an Atlantic County jury began to hear arguments in the first Fosamax trial to be heard in New Jersey, Rosenberg v. Merck.
Mrs. Rosenberg was prescribed Fosamax in 2001 after being diagnosed with osteoporosis and continued to take the medication until 2006, even after her bone mineral density levels were above the osteoporotic range. In December 2005, she had a tooth extraction and noticed that she had significant pain in the area. She returned to her oral surgeon, who noticed that she had an area of exposed bone. After treating the area, he was mystified to find that her jaw would not heal and the areas of exposed bone were still visible. He referred her to an oral medicine specialist, who noticed bone specula. After multiple biopsies and appointments with both physicians she was finally, definitively diagnosed with osteonecrosis of the jaw (“ONJ”) in December 2006. Her medical records referred to her exposed bone, for a period of approximately three months – but do not mention it continuously.
Both her oral surgeon and oral medicine specialist testified that she had Fosamax-related ONJ and that she met the specific definition for the condition. Specifically, that she was treated with a bisphosphonate (Fosamax); that she had exposed bone for more than eight weeks; and that she had no history of radiation therapy to the jaws.
Despite this, after a three week trial, the jury found that Mrs. Rosenberg did not have ONJ. It is believed that the jury based their decision on the fact that her medical records did not continuously address exposed bone at every appointment she went to.
This plaintiff specific verdict is a disappointment to those who believe that medical evidence proves that Fosamax causes ONJ and that Merck failed to properly warn physicians and patients of the risk of ONJ associated with Fosamax. However, because it is a finding specific to the circumstances of Mrs. Rosenberg, it does not hinder future plaintiffs from proving that they did have ONJ and that their use of Fosamax caused it.
The MDL Court is expected to hear two more Fosamax-ONJ cases in March and May of this year.
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