New York, NYJust because a Fosamax lawsuit goes against the plaintiff does not suggest the plaintiff lacks a viable complaint. It's just that sometimes things can go against you for various reasons, which appeared to be the case for a Fosamax osteonecrosis patient during a recent court proceeding in the Second US Circuit Court of Appeals.
Fosamax osteonecrosis of the jaw, also known as Fosamax dead jaw or Fosamax ONJ, is a breakdown of jawbone resulting in grievous health and lifestyle issues for the patient. Often, dental work can trigger the condition. However, various lawsuits have linked ONJ to the use of Fosamax bisphosphonate, a drug used to counter the effects of osteoporosis.
In this case, according to the January 2011 issue of the New York Health Law Update, the plaintiff was found to have failed in establishing causation linked to Fosamax for her injury.
The plaintiff, Bessie Flemings, brought product liability claims against Fosamax manufacturer Merck & Co. Inc., based on an allegation that Merck failed to warn the plaintiff with regard to the potential for Fosamax jaw difficulties.
In attempting to prove a link with Fosamax, the plaintiff brought testimony from both her dentist and family physician. However, the dentist testified that he did not have any opinion as to whether or not Fosamax may have caused Fosamax dead jaw in Flemings. Her family physician, in his initial testimony in district court, indicated that he could not conclude that Fosamax caused or contributed to the plaintiff's condition.
No one disputed that plaintiff Flemings was suffering from osteonecrosis of the jaw. However, the plaintiff failed to provide the burden of proof necessary to hold the defendant legally accountable, in the Court's view.
The district court initially granted the defendant's motion for summary judgment. The Second US Circuit Court of Appeals upheld that ruling.
It should be noted that the plaintiff's physician testified in District court that his patient was beset with a history of health issues and oral hygiene problems independent of her use of Fosamax. Court heard that the plaintiff also maintained a three-pack-a-day smoking habit.
In the end, a perhaps weak case may have contributed to the finding, on the part of both Courts, that evidence was insufficient as a matter of law to demonstrate that the administration of Fosamax caused the plaintiff's injury.
However, there appeared to be no denial that Flemings was suffering from osteonecrosis of the jaw, or ONJ. What was disputed—and worked against the plaintiff in the end—was the capacity to prove that the condition, in this case, was the result of Fosamax side effects.
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