Merck claims that it ensured that patients and doctors knew of the fracture risks associated with Fosamax, but "...early indications of a potential link to fractures were 'theoretical'." Merck's lawyer on the case, Chilton Varner, still maintains that the data on Fosamax shows fewer fractures than patients on placebo. The FDA determined, though, that the benefits of Fosamax decline after 3-5 years of treatment.
Merck has won the most recent Fosamax femur-fracture trial in a New Jersey federal court, when it was determined that the plaintiff's broken leg was not related to her Fosamax treatment. According to the plaintiff's lawyer, Paul Pennock, Merck was aware that Fosamax could trigger atypical femur fractures, but neglected to provide such information to either regulators or doctors until Fosamax's market exclusivity had ended in 2008. Since 2008, Fosamax sales decreased by 75%, from US$3 billion in 2007 to US$676 million in 2012. The jury's decision in favour of Merck stated that "[t]he company provided appropriate and timely information about Fosamax to consumers and the medical, scientific and regulatory communities."
Alternatively, Merck lost a Fosamax case earlier this year. The New York jury decided that Merck had not adequately disclosed the bone-related risks associated with Fosamax and failed to warn patients of potential jawbone issues. The plaintiff, Scheinberg, expressed that "[i]n reading the patient insert, it informed me and I understood from reading it that Fosamax would prevent fractures in patients like me." Scheinberg continued that she trusted the information provided by Merck and would not have taken Fosamax had she known that it did not prevent fractures. (Fosamax Products Liability Litigation, re: Scheinberg v. Merck.) While the claim that Fosamax was defective was thrown out, it was agreed that more effective and informative labeling of Fosamax could have been beneficial. In light of this win, the plaintiff's lawyer, Tim O'Brien, stated that "[w]ith this victory, this litigation has a renewed purpose and renewed focus."
Currently, seven of approximately 4,000 Fosamax cases have been tried. Merck won 5/7 tried cases.