ATLANTIC CITY, NJ – Opening statements took place Monday in a civil trial against drug manufacturer Merck & Company (NYSE: MRK) involving the widely-prescribed drug Fosamax.
The lawsuit in Atlantic County Superior Court claims the drug, which is used to treat the bone disease osteoporosis, caused serious injury to plaintiff Jo-Ann Sessner’s jaw, and that Merck failed to warn of Fosamax’s potential serious side effects.
Many patients who took Fosamax have filed lawsuits alleging the drug caused a condition called osteonecrosis of the jaw, where the actual jaw bone dies and can lead to the need for extensive surgery. Sessner’s case is the second to actually go to trial in state court and only the sixth Fosamax trial over all after four others in federal district court. One of those federal lawsuits resulted in the only plaintiff’s award to date.
Sessner’s attorney, Tim O’Brien of Levin Papantonio, told the jury during opening statements taking Fosamax ultimately hurt his client. “It did nothing for her,” he said to the court. “It only did things to her.” He went on to describe how osteonecrosis could only occur because of taking Fosamax, and that Merck intentionally withheld evidence of side effects to protect profits. “What Merck does is scare women,” he said while describing the company’s aggressive marketing of the drug to women with bone diseases like osteoporosis.
Representing Merck, attorney Christy Jones of Butler Snow told jurors Fosamax did its job and benefited Sessner. “It was a good thing Ms. Sessner was prescribed Fosamax,” said Jones. “It was a good thing because it prevented fractures, and some 10 years later Ms. Sessner has never had another fracture. Fosamax worked.” Sessner originally began taking Fosamax after suffering a hip fracture without any fall or injury due to low bone density.
Jones told jurors the evidence would show Sessner developed osteonecrosis in her jaw, after a tooth became infected and had to be removed. “This infection has nothing to do with Fosamax, but it’s that infection that ultimately led to the jaw problems and the injuries,” she said. Jones also pointed to other factors, like smoking, that put Sessner at risk for jaw problems.
Jones represented Merck at the first Fosamax trial last year in New Jersey, and the jury ultimately found Fosamax did not cause osteonecrosis in that case. With her trademark dark clothing and hypnotic southern accent, she also scored a victory for Johnson & Johnson in this same court last year at a trial involving the antibiotic Levaquin.
The current trial will run through at least mid-April, and based on prior cases Sessner’s attorneys will likely ask for millions of dollars in damages. The full trial will be webcast live via Courtroom View Network, which also webcast the first Fosamax trial in state court last year.
The case is Jo Ann Sessner v. Merck Sharp & Dohme, Corp., ATL-L-3394-11.