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Scratch Three More Zyprexa Plaintiffs

By James M. Beck and Mark Herrmann

Judge Weinstein granted three more summary judgment motions yesterday in the Zyprexa mass tort. The reasoning is essentially the same for two of them - the statute of limitations ran, and there was no warning causation under the learned intermediary rule. The third case had no statute of limitations issue, and was solely a causation decision. Briefly:

In Morrison v. Eli Lilly, the drug helped the plaintiff with fewer adverse effects than any of the other medications he tried. There was evidence that the plaintiff refused to be taken off the drug despite weight gain. Plaintiff's medical records and his treater's deposition demonstrated knowledge of associations between the drug and weight gain/diabetes, well before the statute of limitations ran. Thus, under the Missouri discovery and learned intermediary rules, the claims were time barred. There was also no causation, as the physicians prescribed and maintained the plaintiff on the drug with knowledge of its potential effects because it was effective in treating the plaintiff's psychological condition.

In Leggett v. Eli Lilly, the plaintiff had been locked up as criminally insane, but the drug helped enough that he could be released. For almost twice the period of the relevant California statute of limitations, plaintiff's medical records and his treater's deposition demonstrated knowledge of associations between the drug and weight gain/diabetes. There was also no causation under the learned intermediary rule because the treater testified that he would prescribe the drug regardless of any diabetes warning because it helped the plaintiff so much.

In Neal v. Eli Lilly, use of the drug alleviated the plaintiff's various auditory hallucinations and suicidal depression. All four of the treating physicians were aware of the alleged diabetes association, and prescribed the drug anyway, given its beneficial effect on his condition. Because no additional warning would have changed the result, there was no causation under California law. There was no medical causation either, because the plaintiff's expert had been thrown out, and his treaters doubted that the drug caused plaintiff's diabetes.

Full post as published by Drug and Device Law on June 26, 2009 (boomark / email).