3rd Cir. Revives Fosamax Failure-To-Warn Claims, Rejects Preemption Argument

PHILADELPHIA — The 3rd Circuit U.S. Court of Appeals has revived claims accusing Merck & Company Inc. of failing to warn that osteoporosis drug Fosamax can cause atypical femoral fractures, ruling that they are not preempted because the drug maker failed to show that the FDA would have rejected any and all warnings that satisfied state law.

In a Sept. 20 opinion, the appellate panel explained that for the claims to be preempted, the FDA, acting with the force of law, must have clearly rejected Merck’s label in a manner that made it evident that no label about atypical femoral …