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Bexis’ firm represents Merck, so he was not involved in drafting this post. Pin the blame for what follows exclusively on Herrmann:
We were so busy ranting yesterday about that article on spine surgery in The New York Times that we nearly overlooked this little ditty from The Wall Street Journal. It reports that the Fosamax litigation “presents one of the bigger question marks to Merck’s bottom line.”
Fosamax is a drug indicated to strengthen bones that, according to the lawsuits, occasionally causes a bone-wasting condition called osteonecrosis of the jaw (“ONJ”). As of September 30, Merck had been named in 340 ONJ lawsuits, but it has recently been named in a “weakened bones in places other than the jaw” case, and plaintiffs are threatening to plead that Fosamax causes severe bone, joint, or muscle pain.
Is that really one of the bigger question marks to Merck’s bottom line?
It depends.
To our jaded eyes, a set of just 340 cases is for rookies. Heck, at 340 you can still remember the name of each individual plaintiff and what state they sued you in. Our “very personal computers” don’t go on the fritz until you approach 500 cases, and a true mass tort begins somewhere north of that. The two of us could defend 340 cases with one of us on vacation. (Who’s heading to Aruba, Bexis, you or me?)
That’s not to say that 340 cases aren’t a menace. Just one “bad baby” or brain damage case can be as serious as a heart attack. (Heck, even a heart attack case can be serious.) But it’s the quality of those cases, and the injuries involved — not their sheer quantity — that may induce a settlement. That’s the way litigation is supposed to work. Mass torts coerce settlement because the logistics and cost of defending the cases threaten to overwhelm the defendant; a mere 340 cases doesn’t meet that threshold.
So long as osteonecrosis of the jaw is a real disease — one that exists and has objective criteria (that can’t be faked) for diagnosing it — Merck doesn’t have to worry about an avalanche of ONJ cases overwhelming it. If ONJ is a real disease (and, according to Wikipedia, it sounds like one), then Merck will face only a limited number of cases. (One reason Breast Implants and Bone Screws became mass torts is because the alleged injury was “pain.” Everyone can say they’re feeling pain, and no one can refute it. Drugs that cause more objectively defined endpoints are less likely to become mass torts. We’re unlikely, for example, to see thousands of “Accutane caused me to commit suicide” cases. To state that claim, you’ve gotta first blow yourself away, and even the greediest plaintiff is unlikely to go that far.)
If, however, the Fosamax litigation expands to pick up claims for “severe pain,” then Katy bar the door.
Fosamax is prescribed in an older population — people who are likely to suffer pain whether or not they ever took the drug. And there’s no objective test to determine who’s really suffering severe pain and who’s just gaming the system for a payday.
From our defense perspective — and even from a public policy perspective — we’re delighted that Merck’s label on Fosamax has for years contained a precaution about the possibility of patients developing pain.
From a litigation perspective, we hope that the adequacy of that warning, or the general knowledge in the medical community about the risk that ingesting bisphosphonates can be associated with pain, is sufficient to bar an influx of bogus “pain” cases.
Because even the two of us — blogging Luddites that we are — could handle 340 cases.
But we don’t want to be in that number, if the pain comes marching in.