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Second Circuit Affirms First Zyprexa Learned Intermediary Decision

By James M. Beck and Mark Herrmann

Sorry for the long title, but we didn't want anybody thinking for even an instant that the Second Circuit affirmed that Zyprexa decision.  Rather, in an unpublished memorandum, the court has affirmed the first of the numerous Zyprexa summary judgments based on the learned intermediary rule that Judge Weinstein has issued over the last year-and-a-half or so.  The case is called Dean, and here's the slip opinion.  Basically the prescribing doctor testified that he knew about the risk at the time he prescribed and that he hadn't learned anything since that would change his mind - thus there's no causation under Florida law.

It's more or less cut and dried, and that's why Dean is just a memorandum, but it's significant to us in that, being the first, it portends well for affirmance of the rest of a whole bunch of similar decisions that Lilly's won in the Zyprexa litigation lately.

Thanks to Andy Rogoff at Pepper Hamilton for letting us know.

Full post as published by Drug and Device Law on July 16, 2010 (boomark / email).