Thanks to Supreme Court de­ci­sion, Mer­ck gets an­oth­er chance to throw out Fos­amax claims

In a tem­po­rary re­lief for Mer­ck amid on­go­ing le­gal dra­ma sur­round­ing its os­teo­poro­sis drug Fos­amax, the Supreme Court has va­cat­ed the judg­ment of a low­er court and di­rect­ed it to re­con­sid­er a rul­ing that al­lowed law­suits to go to tri­al.

While the jus­tices did not weigh in on the mer­its of those law­suits, the de­ci­sion re­vives Mer­ck’s hopes of throw­ing out hun­dreds of pa­tients claims, which ac­cuse the phar­ma gi­ant of vi­o­lat­ing state laws by ne­glect­ing to warn them of risks as­so­ci­at­ed with Fos­amax for over a decade. Even though sci­en­tists had spec­u­lat­ed that Fos­amax — a bis­pho­s­pho­nate de­signed to pre­vent os­teo­porot­ic frac­tures — could in­crease the risk of atyp­i­cal femoral frac­tures be­fore the FDA ap­proved the drug in 1995, the la­bel did not fea­ture a warn­ing on that score. De­spite sub­se­quent ev­i­dence from pa­tient re­ports con­firm­ing the risk, a warn­ing was not added un­til 2010 fol­low­ing an or­der from reg­u­la­tors.

Why didn’t Mer­ck do any­thing about it dur­ing that time? It’s not for lack of try­ing, the com­pa­ny ar­gues. Rather, its at­tempt to add a warn­ing to the la­bel was re­ject­ed by the FDA, free­ing it of any le­gal re­spon­si­bil­i­ty for fail­ure to warn.

Stephen Brey­er

Key to val­i­dat­ing that ar­gu­ment is a le­gal prin­ci­ple in fed­er­al-state re­la­tions known as pre-emp­tion. In this case — fol­low­ing a 2009 prece­dent set in Wyeth v. Levine — it means that when there is “clear ev­i­dence” that the FDA would not have ap­proved the warn­ing that state law re­quires, the drug man­u­fac­tur­er could not be blamed for fail­ing to com­ply with that state law.

The plain­tiffs might dis­agree on whether that cri­te­ria is met. In fact, Jus­tice Stephen Brey­er ac­knowl­edged in the ma­jor­i­ty opin­ion that the FDA turned down Mer­ck’s pro­posed change on the grounds that it was “in­ad­e­quate” and in­vit­ed them to re­sub­mit an ap­pli­ca­tion to ful­ly ad­dress its de­fi­cien­cies. But that’s up for a judge, not a ju­ry, to de­cide — con­tra­dict­ing the de­ci­sion of the 2017 rul­ing by the Court of Ap­peals for the Third Cir­cuit.

That’s where the case, 17-290 Mer­ck Sharp & Dohme Corp. v. Al­brecht, is head­ed back now.

From the head­note sum­ming up the unan­i­mous rul­ing:

The ques­tion of agency dis­ap­proval is pri­mar­i­ly one of law for a judge to de­cide. The ques­tion of­ten in­volves the use of le­gal skills to de­ter­mine whether agency dis­ap­proval fits facts that are not in dis­pute. More­over, judges, rather than lay ju­ries, are bet­ter equipped to eval­u­ate the na­ture and scope of an agency’s de­ter­mi­na­tion, and are bet­ter suit­ed to un­der­stand and to in­ter­pret agency de­ci­sions in light of the gov­ern­ing statu­to­ry and reg­u­la­to­ry con­text. While con­test­ed brute facts will some­times prove rel­e­vant to a court’s le­gal de­ter­mi­na­tion about the mean­ing and ef­fect of an agency de­ci­sion, such fac­tu­al ques­tions are sub­sumed with­in an al­ready tight­ly cir­cum­scribed le­gal analy­sis and do not war­rant sub­mis­sion alone or to­geth­er with the larg­er pre-emp­tion ques­tion to a ju­ry.

Law­suits against Mer­ck on Fos­amax first emerged around 2009, af­ter the drug had gone gener­ic. It still gar­nered $209 mil­lion in sales last year, ac­cord­ing to fi­nan­cial re­ports.

Im­age source: Shut­ter­stock

Brian Kaspar. AveXis via Twitter

AveX­is sci­en­tif­ic founder fires back at No­var­tis CEO Vas Narasimhan, 'cat­e­gor­i­cal­ly de­nies any wrong­do­ing'

Brian Kaspar’s head was among the first to roll at Novartis after company execs became aware of the fact that manipulated data had been included in its application for Zolgensma, now the world’s most expensive therapy.

But in his first public response, the scientific founder at AveXis — acquired by Novartis for $8.7 billion — is firing back. And he says that not only was he not involved in any wrongdoing, he’s ready to defend his name as needed.

I reached out to Brian Kaspar after Novartis put out word that he and his brother Allen had been axed in mid-May, two months after the company became aware of the allegations related to manipulated data. His response came back through his attorneys.

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We­bi­nar: Re­al World End­points — the brave new world com­ing in build­ing fran­chise ther­a­pies

Several biopharma companies have been working on expanding drug labels through the use of real world endpoints, combing through the data to find evidence of a drug’s efficacy for particular indications. But we’ve just begun. Real World Evidence is becoming an important part of every clinical development plan, in the soup-through-nuts approach used in building franchises.

I’ve recruited a panel of 3 top experts in the field — the first in a series of premium webinars — to look at the practical realities governing what can be done today, and where this is headed over the next few years, at the prodding of the FDA.

ZHEN SU — Merck Serono’s Senior Vice President and Global Head of Oncology

ELLIOTT LEVY — Amgen’s Senior Vice President of Global Development

CHRIS BOSHOFF — Pfizer Oncology’s Chief Development Officer

A premium subscription to Endpoints News is required to attend this webinar. Please upgrade to either an Insider or Enterprise plan for access. Already have Endpoints Premium? Please sign-in below. You can contact our Subscriptions team at with any issues.

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Bob Smith, Pfizer

Pfiz­er is mak­ing a $500M state­ment to­day: Here’s how you be­come a lead play­er in the boom­ing gene ther­a­py sec­tor

Three years ago, Pfizer anted up $150 million in cash to buy Bamboo Therapeutics in Chapel Hill, NC as it cautiously stuck a toe in the small gene therapy pool of research and development.

Company execs followed up a year later with a $100 million expansion of the manufacturing operations they picked up in that deal for the UNC spinout, which came with $495 million in milestones.

And now they’re really going for it.

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Video: Putting the AI in R&D — with Badhri Srini­vasan, Tony Wood, Rosana Kapeller, Hugo Ceule­mans, Saurabh Sa­ha and Shoibal Dat­ta

During BIO this year, I had a chance to moderate a panel among some of the top tech experts in biopharma on their real-world use of artificial intelligence in R&D. There’s been a lot said about the potential of AI, but I wanted to explore more about what some of the larger players are actually doing with this technology today, and how they see it advancing in the future. It was a fascinating exchange, which you can see here. The transcript has been edited for brevity and clarity. — John Carroll

UP­DAT­ED: As­traZeneca’s Imfinzi/treme com­bo strikes out — again — in lung can­cer. Is it time for last rites?

AstraZeneca bet big on the future of their PD-L1 Imfinzi combined with the experimental CTLA-4 drug tremelimumab. But once again it’s gone down to defeat in a major Phase III study — while adding damage to the theory involving targeting cancer with a high tumor mutational burden.

Early Wednesday the pharma giant announced that their NEPTUNE study had failed, with the combination unable to beat standard chemo at overall survival in high TMB cases of advanced non-small cell lung cancer. We won’t get hard data until later in the year, but the drumbeat of failures will call into question what — if any — future this combination can have left.

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SEC calls out lit­tle Ther­a­peu­tic­sMD for its in­sid­er con­tacts with an­a­lysts to boost share price, then halt rout

Back in May 2017, following an FDA rejection, TherapeuticsMD saw its share price plummet to the lowest levels in two years. The little Florida biotech eventually found its way back to the good side of regulators, scoring a curious OK a year later for its therapy preventing vaginal pain during sex. But the SEC is now accusing it of selectively disclosing nonpublic information in attempts to manipulate its stock.

In two instances in June and July of 2017, TherapeuticsMD allegedly violated the Regulation Fair Disclosure rule by sharing material information with certain sell-side analysts and not the public, resulting in a more favorable stock move than otherwise would be expected.

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Therapists Marcela Ot'alora and Bruce Poulter are trained to conduct MDMA-assisted psychotherapy. In this reenactment, they demonstrate how they help guide and watch over a patient who is revisiting traumatic memories while under the influence of MDMA. (Photo: Multidisciplinary Association for Psychedelic Studies)

MD­MA, now in Phase III, shows promise as a PTSD treat­ment

The first time Lori Tipton tried MDMA, she was skeptical it would make a difference.

“I really was, at the beginning, very nervous,” Tipton said.

MDMA is the main ingredient in the club drug known as ecstasy or molly. But Tipton wasn’t taking pills sold on the street to get high. She was trying to treat her post-traumatic stress disorder by participating in a clinical trial.

After taking a dose of pure MDMA, Tipton lay in a quiet room with two specially trained psychotherapists. They sat next to her as she recalled some of her deepest traumas, such as discovering her mother’s body after Tipton’s mother killed two people and then herself in a murder-suicide.

Ted Ashburn. Oncorus

Cowen, Per­cep­tive lead $79.5M Se­ries B for 's­tand­out' biotech shep­herd­ing on­colyt­ic virus to clin­ic

As several Big Pharma players secure biotech partners in the oncolytic virus space for new immuno-oncology combos, Cowen and Perceptive Advisors have come out with their own bet on a startup that promises to shine.

The marquee investors are joining MPM, Deerfield, Celgene, Astellas, Arkin and UBS in backing the drug developer, Oncorus, which will now deploy the $79.5 million in Series B cash toward clinical development of its lead program. Other new investors include Surveyor Capital, Sphera Funds, IMM Investment, QUAD Investment Management, UTC Investment, SV Investment Corp and Shinhan Investment-Private Equity, the last five of which are Korean-based funds.

Fu­til­i­ty analy­sis au­gurs de­feat in piv­otal tri­al test­ing of Nu­Cana's lead drug in metasta­t­ic pan­cre­at­ic can­cer

Nearly two years after making its public debut, UK-based NuCana’s mission to make chemotherapies more potent and safer was dealt a blow, after a pivotal study testing its lead experimental drug halted enrollment in a hard-to-treat advanced form of cancer, following a futility analysis.

The drug, Acelarin, is being evaluated for use in metastatic pancreatic cancer patients who were not considered suitable for combination chemotherapy. In the late-stage ACELARATE study — which compared the experimental drug against the chemotherapy gemcitabine — 200 patients had been enrolled by the sponsor, Clatterbridge Cancer Centre, before an analysis from an independent safety and data monitoring panel suggested the study’s main goal would not be met.