Merck Asks High Court to Review Reinstatement of Failure-To-Warn Claims in Fosamax MDL

PHILADELPHIA — Merck has asked the U.S. Supreme Court to review a federal appeals court’s reinstatement of failure-to-warn claims in the Fosamax MDL, arguing the claims are preempted because the Food and Drug Administration would not have approved enhanced warnings to the label.

In filing a petition for certiorari on Aug. 22, Merck seeks to challenge the 3rd Circuit U.S. Court of Appeals’ determination that the preemption issue is factual and cannot be resolved on a motion for summary judgment.

The appellate court held that under the “clear evidence” standard set forth in Wyeth v. Levine, the factfinder must conclude …