Rottenstein Law Group Considers With Some Misgivings Dismissal of Claims Against Generic Fosamax Manufacturers in Multidistrict Litigation

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The Rottenstein Law Group, which represents clients with claims stemming from the severe side effects of the drug Fosamax, has learned that claims in the Fosamax femur fracture multidistrict litigation have been dismissed as against some generic manufacturers of the product.

Fosamax Femur Fracture

As the representative of claimants who allegedly suffered harm as a result of having taken Fosamax or its generic equivalent, the attorneys at the Rottenstein Law Group lament this decision’s potential to prevent victims who took only Fosamax’s generic equivalent from recovering for their injuries. The attorneys at the Rottenstein Law Group also lament this decision’s potential to discourage generic drug manufacturers from doing all they can to warn the public about their products’ potential to cause harmful side effects.

Citing principally to the recent United States Supreme Court decision in Pliva v. Mensing, in early October a group of defendants in the multidistrict litigation concerning Fosamax and femur fractures—MDL No. 2243; Civil Action No, 08-08, In Re: Fosamax (Alendronate Sodium) Products Liability Litigation (No. II)—moved the court to dismiss all claims against them on the ground that, as generic drug manufacturers, they could not be held liable under any legal theory for failing to warn consumers of the dangers of the drug at issue. On November 21, Judge Garrett E. Brown of the United States District Court for the District of New Jersey granted the motion, dismissing six defendants from the action.

The Supreme Court of the United States on June 23 issued its decision in Pliva (case no. 09-993) and two related cases. The majority opinion of the Supreme Court provides, essentially, that a generic drug manufacturer has an “impossibility” defense to a claim that it violated state law (by allegedly failing to include warnings on product labeling) because federal law—which completely pre-empts state law in this arena—requires that the label of a generic drug be the effective equivalent of the label of the name brand drug. The information given on the label of a brand name drug is decided by the brand name drug manufacturer in cooperation with the FDA. A generic drug manufacturer may not, under federal law, change its product’s label unilaterally—making it impossible for a generic drug manufacturer to comply with both a state law that requires disclosure of risks (that are known or should be known by the manufacturer) and the federal regulations promulgated by the FDA.

That Supreme Court ruling, argued defendants Teva Pharmaceuticals, Barr Pharmaceuticals, Mylan Pharmaceuticals, and others, compels the dismissal of claims against generic drug manufacturers in the Fosamax MDL. The MDL court agreed, granting the motion over the objection of the plaintiffs.

The precedent established by Judge Brown’s dismissal of generic drug manufacturers in the Fosamax MDL may preclude claimants who took a generic form of Fosamax from obtaining recovery from generic drug manufacturers pursuant to certain causes of action. It will not necessarily prevent them from recovering altogether, however. Nor will it prevent patients who took brand-name Fosamax from recovering compensation from Merck & Co., the manufacturer of brand-name Fosamax.

In light of this, the Rottenstein Law Group urges anyone whose friend or relative has been prescribed Fosamax or another osteoporosis drug to reach out to that person and recommend that he or she consult a physician immediately and then speak to a qualified personal injury lawyer. The Rottenstein Law Group maintains a Fosamax Lawsuit Information Center at The site has features that allow for easy sharing, including links for automatic posting on Facebook and Twitter, specifically to enable visitors to spread the word about the dangers of Fosamax.

The Rottenstein Law Group is a New York-based law firm that represents clients in dangerous drug lawsuits. The firm was founded by Rochelle Rottenstein, who has more than two decades of experience as a lawyer, to represent clients hurt by defective consumer products.

The Rottenstein Law Group, LLP
Rochelle Rottenstein, Esq.
1259 Veeder Drive
Hewlett NY 11557
(212) 933-9500 (office phone)
(212) 933-9980 (facsimile)


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Rochelle Rottenstein, Esq.
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