Years after suing drug giant Merck & Co. for serious injuries allegedly caused by osteoporosis drug Fosamax, more than 500 plaintiffs will have to wait to hear the U.S. Solicitor General’s take on their case, and the outcome could reverberate across the pharmaceutical industry.
That’s because Merck’s bid at the U.S. Supreme Court seeks to reestablish a federal preemption defense it argues has been chipped away in courts over the years. The drug giant says the current case is the “ideal vehicle in which to lay down a legal marker for when a failure-to-warn claim is properly preempted in the branded drug context, and thus revive the preemption defense.”
The Supreme Court has asked (PDF) the U.S. government to weigh in on a case over whether Merck should be liable for hundreds of thigh fractures and whether the company’s efforts to get warning language added to the drug’s label should absolve it of responsibility. In asking for a Supreme Court review of a lower court’s decision, Merck also said pharma cases are especially important to get right because of their impact on public health.