Monday, January 31, 2011

A Recent Zyprexa Ruling Lifts Our Mood

Yesterday, our 15-year-old son looked at the falling flakes and wondered aloud whether it was ever going to stop snowing. He's prone to complaint (future plaintiff lawyer) but, in truth, the ten-foot high snowbanks and the sheets of devilish, black ice are a bit depressing. We knew the arrival of 30 page Zyprexa opinion by Judge Weinstein, In re Zyprexa Products Liability Litigation, 2011 U.S. Dist. LEXIS 6207 (E.D.N.Y. Jan. 20, 2011), would move us along the happy-sad meter, but we didn't know which direction.

Not to put too fine a point on it, but Zyprexa rulings are a big deal. The Zyprexa litigation involves a big-selling medicine prescribed for important psychological maladies (including schizophrenia and bipolar disorder), with allegations that the drug is contributing to the American epidemics of obesity and diabetes. It involves claims for wrongful death, personal injury, consumer fraud, and securities violations. There have been third-party claims, federal and state civil actions, and a federal criminal action. Decisions in the Zyprexa litigation made our ten-best list in 2010 (the Second Circuit's reversal of Judge Weinstein's certification of a RICO class action by third-party payors), our ten-best list in 2009 ("Pigs Get Fat, Mississippi Got Slaughtered"), and our ten-worst list in 2008 (Judge Weinstein's certification of the RICO action). Zyprexa rulings have kept us rather busy. We've blogged about the case's treatment of Daubert challenges, caps on attorney fees, and sanctions for disclosure of confidential documents. And much more.

It's been riveting. Maybe that shouldn't come as a surprise, because the stakes have been so high, the lawyers on both sides have been so energetic and creative, and the judge has been so ... well, it's Judge Weinstein, after all. We might not agree with more than thirty percent of what Judge Weinstein writes, but there's no getting around the fact that he is brilliant, careful, and prolific. So a 30 page opinion by Judge Weinstein is like a new Oliver Stone film -- we know it'll be interesting and fear it'll be infuriating.

Except that the first 26 pages consists of listing counsel. That is one of the perils of an MDL. We flipped through the pages quickly and ended up reading a very short, straightforward discussion about learned intermediaries. Anxiety gave way to delight. Judge Weinstein granted summary judgment in a case because the plaintiffs' treating physicians testified that they "were aware of the potential metabolic side-effects of Zyprexa, including diabetes, at the time they made their prescription decisions." 2011 U.S. Dist. LEXIS at *95. Two of the doctors supplied the strongest possible statements: "none of the information they have learned about Zyprexa would have changed their treatment." Id. A third doctor stated that "he would not necessarily have treated [plaintiff] differently, and that today he would still 'tend not to change that a medicine' that a patient is already taking." Id. at *95-96. That's the sort of testimony that makes your average defense lawyer somewhat content, but also somewhat uneasy, as he or she is walking away from the deposition. It's enormously useful to know that even Judge Weinstein agrees that such testimony can end a case.

As is typical, the plaintiff did not take this sort of thing lying down. First, they submitted expert reports to the effect that a "reasonably prudent doctor" would not have prescribed the drug if they had known the truth. Id. at *97. Nice try. But the actual treating doctors testified that "they were already aware of the risks of diabetes at the time Zyprexa was prescribed." Id. Apparently, Judge Weinstein did not buy the implicit assertion by the plaintiff's experts that the treaters committed malpractice. Moreover, the plaintiffs' experts shaved things a bit too fine. They said that an informed physician would not have prescribed Zyprexa as a first-line agent. But, as is often the case with antipychotics, the plaintiff had already tried other drugs. Zyprexa here was not a first-line agent. Id. Next?

There always is a next, isn't there? And that "next" was something we've seen as often as the Seinfeld "The Contest" episode (with some striking similarities). The plaintiff trotted out the "overpromotion" theory. Judge Weinstein gave it short shrift: the plaintiff's doctors were aware of the risks, and there was no evidence that they were misled by detailers. Id. at * 98. Perhaps this was the part of the opinion that gladdened our hearts most. If Judge Weinstein can scrape the overpromotion theory off his shoe in a single paragraph, maybe that threadbare theory really is headed for the dustbin of history.

None of this clears our driveway or makes the trains run on time, but it puts us in a sunnier mood and maybe that makes it easier to deal with the insults of Winter.

2 comments:

bail bonds las vegas said...

Yes Winter can be brutal in certain parts. Enough to make one need prescription pyche meds.

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Daniel Haszard said...

Eli Lilly Zyprexa Settlement Stonewalling

Lilly's (NOW up to $4.6 billion) Zyprexa settlement payout is being stonewalled. 8 Lilly employees who are supposed 'whistle-blowers' are getting $ 10 million each the real victims like me are being ignored.

Zyprexa-victims.com 6 years on line anniversary promoting activism awareness of Eli Lilly Zyprexa

I am a living example of Zyprexa gone/done wrong was given it 1996-2000 off-label for PTSD got sudden high blood sugar A1C 14.7 in January 2000.The stuff was worthless for my condition PTSD and cost me thousands in co-pays gave me diabetes.
Eli Lilly has made $40 billion on Zyprexa and it was way oversold and caused diabetes and in some cases sudden death.

Zyprexa was pushed by Lilly Drug Reps
They called it the "VIVA ZYPREXA" campaign to off label market Eli Lilly Zyprexa as a fix for unapproved usage.

Zyprexa (Olanzapine) is known as an atypical antipsychotic It's mechanism of action is thought to be that it increases levels of serotonin and dopamine. It's chemical name is thienobenzodiazepine although is not a benzo like Valium (Diazepam).
One of it's well known major side effects is weight gain which is why it is sometimes favored for those with eating disorders (which would be an off label use)

Doctors are at liberty prescribe drugs 'off label' like Zyprexa which is only FDA approved for schizophrenia and bipolar.They can give it or just about any drug for conditions other than what the drug was tested for.The doctors don't realize that Zyprexa is very addictive once a dependence has been built up and withdrawal is wicked.

I took it 1996-2000 for PTSD and it was worthless for my symptoms and gave me diabetes with an A1C of 13.9 normal blood sugar is 4
I had to get off it and it took me two months of horrible insomnia,I did not sleep for weeks.
So,be warned Zyprexa is addictive,I think worst than nicotine and don't go off it unless you do so gradually under a doctor's care.
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Daniel Haszard http://www.zyprexa-victims.com/