Merck Asks High Court to Review 3rd Cir.’s Fosamax Preemption Ruling

PHILADELPHIA — The U.S. Supreme Court has been asked to review a ruling that claims accusing Merck of failing to warn that its osteoporosis drug Fosamax can cause atypical femoral fractures are not preempted because the drug maker failed to show that the FDA would have rejected warnings that satisfied state law.

According to its March 10 petition for certiorari, Merck told the FDA that Fosamax may be associated with certain atypical femoral fractures, and proposed a label change to warn about that risk, but the agency formally denied the proposal without suggesting an alternative.

“Two district judges correctly …