Design Defect, Fraud Claims Dismissed Without Prejudice in N.Y. Federal Fosamax Case

BUFFALO, N.Y. — A New York federal judge has dismissed without prejudice design defect claims asserted in a Fosamax injury action, finding the plaintiff failed to point to a feasible alternative design for the osteoporosis drug.

In a May 5 order, Judge Christina Reiss also dismissed without prejudice the claims for breach of express warranty and fraud, ruling they were inadequately pled.

Joanne MacSwan was prescribed Fosamax in January 2009 and alleges she sustained severe and permanent injuries as a result. She alleges Merck knew or should have known that Fosamax, like all bisphosphonates, “increases the release of inflammatory cytokines …