In Alaska, The Jury Was Leaning Against Lilly
9 CommentsBy Ed Silverman // March 27th, 2008 // 10:35 am
Why was there a $15 million settlement now in the Zyprexa trial in Alaska? On one hand, the state worried about the upcoming Supreme Court review this fall of a lawsuit against Wyeth and the debate over preemption. This concept turns on whether FDA approval supercedes state law claims challenging safety, efficacy or labeling. Drugmakers and the FDA argue preemption exists by maintaining agency decisions are the final word on safety and effectiveness.
During the trial, the judge remarked that, without lawsuits like the one Alaska brought against Lilly over Zyprexa marketing, claims that drugs cause health problems “might well go unaddressed.” His comment underscored the possibility that seeing the trial to completion may not be such a smart move. “We had this issue with the Supreme Court deciding pre-emption this fall that could have completely unwound any victory we might have had,” Ed Sniffen, Alaska’s senior assistant attorney general, told The New York Times.
Meanwhile, only three of 12 jurors were leaning toward Lilly and the rest were for the state. Lilly may have detected the mood, given that jury consultants are regularly hired to watch trials. Remember, this trial was seen as a test case because nine other states have sued Lilly and more may follow. Few jurors supported the drugmaker, but most probably would have gone the state’s way after talking it out, according to Dennis Jump, who sided with Lilly. “I guess in the end, Lilly…pushed a line and they probably at points pushed it too far,” Jump tells The Anchorage Daily News.
He thought the benefits of Zyprexa for conditions like schizophrenia outweighed the risks, but not for depression, a market that Lilly hoped to reach. But while each side relied heavily on expert witnesses and studies that essentially canceled each other out, he tells the paper. “Where’s the army of Alaskan doctors who are mad and said Lilly’s people came into our office and bald-faced lied to me?”
But Jennifer Mitchell, another juror, tells the News she was disappointed she didn’t get to hear all of Lilly’s evidence. “But that said the State of Alaska had a really strong case.” “A definite cover-up,” is how another juror, Misty Steed, describes Lilly’s tactics. Lilly was trying to minimize the risks and it tortured the data from studies, she tells the paper. “I was concerned about what this is doing not only to Alaska, but also the nation.
And how about that $15 million? Was that a good deal?
If the judge had allowed every Zyprexa prescription written for Medicaid patients to count as a violation of the state’s unfair trade practices act, the state could have won $200 million, the News writes. And that’s at the minimum $1,000 penalty for each of 200,000 prescriptions written over multiple years, Sniffen tells the paper. But Superior Court Judge Mark Rindner indicated he wasn’t going to count each prescription.
Meanwhile, the $15 million can be adjusted upwards if necessary to make sure that Alaska gets treated as well as any other state that settles with Lilly. The outside lawyers hired by the state will get 20 percent of the $15 million, plus costs, which should amount to about $500,000, Sniffen tells the paper, adding that about $3.5 million of the $15 million will go to the lawyers.
Nathan
How far did this case go? You state the 9 of the 12 jurors were leaning towards siding with the state. However, had the defense even presented it’s case? I know that they cross-examined a few prosecution witnesses — but that is very different than calling their own witnesses. Had the judge given the legal instructions to the jury? I was on a jury recently — my opinion swayed back and forth during the course of the trial. Moreover, the judge generally instructs jurors to try not to form opinions about the case, even in the privacy of their own mind, until both sides have presented and the judge has instructed the jury about laws that relate to the case. This doesn’t happen until both prosecution and defense have rested.
Jack2
I agree with Nathan. We don’t know what would have happened if Lilly presented it’s full defense.
Nathan
One more thing: The fact that the state was willing to settle for such a small sum of money actually may speak much louder about the quality of the defence. If the state had such a rock-solid case, why settle for so little?
Scott
I think Lilly concluded that a settlement would be far less costly than losing the case and setting a legal precedent for the other 9 states to draw upon in their own lawsuits. The agreement with the State of Alaska also ensures that Alaska won’t get less than other states do, so again, this was a calculated business move on Lilly’s part.
Ed Silverman
Hi Nathan,
Yes, Lilly had begun to present its case. I posted an item that included info about Lilly’s witnesses. That was on March 22.
http://www.pharmalot.com/2008/03/judge-fda-cant-police-safety-problems/
And like you, I only know what these jurors told the reporter from the Anchorage newspaper. Like it or not, that’s what they said.
As to the amount paid, I’m sure that will continue to be debated each way. One view is that Alaska got about $25 a head, based on the state’s population of 600,000 or so. Is that a good deal? Depends who you ask, I suppose. If that figure is used elsewhere perhaps - there are other lawsuits pending - perhaps the dollars start adding up. Again, there are going to be differing ideas about this.
Hope this helps
ed
Grieving
I have heard that the state’s record keeping, regarding who was killed and when, and who got diabetes and when, was less than stellar and that this issue impacted the settlement. I must say it’s interesting that the state’s outside lawyers consider themselves to have been unfairly treated.
Well, t here is still hope. The federal case - DOJ for Eastern Pennsylvania and the Connecticut RICO case - both have potential to put lyin’ Lilly in prison.
Justice in Michigan
Fascinating report. Among other things, the fact that the spectre of preemption is playing into these settlements is certainly of note. According to reports, it was also part of why litigants’ lawyers were pushing people to accept the Vioxx settlement.
To that degree, the preemptors can already claim victories beyond individual cases.
Paul
Again a one-sided story. Would have been good to let the whole trial run its course and to hear Lilly’s story as well as how many people were really hurt given such shoddy records.
Grieving
This follows the Lilly playbook. How many death cases from Prozac or Zyprexa…..I should say murder cases ….have ended up in court versus an out of court settlement where the real details stay cloaked in anonymity.???