By Bill Cash

September 17th, 2012  9:25am

Last week, on behalf of several patients injured by generic versions of the drug Fosamax, Levin Papantonio lawyers Brandon Bogle and Bill Cash filed a brief arguing that generic drug companies should be responsible for the damage caused by their drugs.  The issue is currently pending before the United States Court of Appeals at Philadelphia, and that court will soon decide whether the patients have the right to bring a case.  The case is called Welch v. Merck Sharp & Dohme Corp.

Fosamax, a drug in the bisphosphonate class of drugs, is designed to reverse the effects of osteoporosis and build healthier bone in the human body.  But the drug has been associated with potentially crippling side effects stemming from the way the drug works.  In some patients, the drug actually leads to the formation of more dense, brittle bone that leaves patients vulnerable to damage and injury.  Some patients have developed a disabling disease known as “osteonecrosis of the jaw,” in which the jaw essentially rots away and has to be surgically removed and replaced with metal.  Other patients have developed what have been termed “atypical femur fractures” after long-term use of the drug.

Generic versions of Fosamax came onto the market in 2008.  Last year, the Supreme Court held that federal law required the generic drug companies to use the same labeling and warnings that were written by the name brand inventor of Fosamax.  The generic drug companies used that ruling to then argue that they could not be sued for any reason at all.  The trial judge agreed with them and dismissed the cases of many patients.

Eventually, some of these patients appealed to the Court of Appeals.  In last week’s brief, Levin Papantonio lawyers pointed out that the Supreme Court’s decision did not apply to lawsuits where the patients argue that the drug is defectively designed (as opposed to carrying an incomplete or inadequate warning).  “Where the risks of a drug outweigh its benefits, patients should have a right to sue the manufacturer of that drug,” said Mr. Bogle, one of the brief’s authors.  “We are hopeful that the Court of Appeals will correct the lower court’s error and reinstate these lawsuits,” said Mr. Cash, the other author.

This decision could have precedential effects for thousands of injured patients nationwide.  And there is reason for hope: in May, the federal appellate court based in Boston also ruled that a substantial verdict where the patient alleged that a generic drug is defectively designed should be paid.  Suits like these provide an important mechanism for safety and a strong incentive for companies to protect patients from dangerous drugs.

Bill Cash is an associate at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.  Mr. Cash represents people wrongfully injured across the United States.  He concentrates his practice mainly in the area of products liability, including pharmaceuticals and other consumer products, but occasionally also handles other personal injury claims and contract cases.

Learn more about the Fosamax lawsuit.