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A Nice Little Zyprexa Dismissal

By James M. Beck and Mark Herrmann

Right now, it looks like Lilly's got the "big mo" in the Zyprexa litigation. Hard on the heals of Judge Weinstein's dismissal of the Mississippi AG action, Lilly chalked up another win yesterday in Philadelphia against a third party payor. Here's a copy, Pennsylvania Employees Benefit Trust v. Eli Lilly & Co., April Term, 2007, No. 2970, slip op. (Pa. C.P. Philadelphia Co. Dec. 10, 2009).

It dismisses the fund's express warranty and unjust enrichment claims. The warranty claims fell because the fund was trying to claim it was a third-party beneficiary, but couldn't explain how the fund (as opposed to prescribers) knew of the claimed warranties - since allegedly they were made during off-label promotion to physicians. Slip op. at 3. The unjust enrichment claims failed because the "unjust" part depended on lack of "medical necessity," which had to be proven individually prescription by prescription. Slip op. at 6.

Tip of the cyberhat - and congratulations - to Tony Vale and Alan Thoen at Pepper Hamilton. Double tip actually, because we're sure you noticed that only two claims were at issue. We thought there had to be more than that (actually, the opinion said so, slip op. at 2), so we prevailed on them to dig out and send over the earlier order that dismissed everything else.

Here's a copy of that order. There's no analysis, but the rulings are these: (1) strict liability - not recognized against prescription drugs; (2) negligence, fraud, 402B misrepresentation - barred by economic loss rule; (3) implied warranty - dismissed for unstated reasons (probably because not recognized against prescription drugs); (4) consumer fraud - barred by learned intermediary rule.

And sorry about the previous slip up. We're learning a new entry system here at Blogger, and we just discovered (the hard way) that "control p" results in immediate publication.

Full post as published by Drug and Device Law on December 11, 2009 (boomark / email).