Lilly Faces Zyprexa Class Action By 3rd-Party Payors
30 CommentsBy Ed Silverman // September 5th, 2008 // 10:27 pm
Insurers, labor unions and pension funds can proceed with a class-action suit that claims they were overcharged by the drugmaker, which allegedly withheld information and disseminated misinformation about the safety and effectiveness of the antipsychotic, according to a hefty, 295-page opinion by US District Court Judge Jack Weinstein (pictured at left). His decision comes two months after he urged Lilly to settle.
Interestingly, Weinstein writes that there is “sufficient evidence of fraud under RICO, the Racketeer Influenced and Corrupt Organizations Act through mail fraud, predicated on overpricing supported by excessive claims of utility as well as disavowal of secondary effects of the drug, primarily weight gain and diabetes.”
At the same time, the federal judge, who is based in Brooklyn, New York, denied class-action status to individuals suing Lilly, because he decided it would be difficult to obtain necessary payment data as well as a conflict, since they are suing the drugmaker “for personal injury and could potentially sacrifice the proposed overpayment class for a better recovery in their individual suits.” Here is the opinion in three parts - one, two and three.
And more than a year after he scolded a lawyer, a plaintiff’s expert witness and a journalist for conspiring to leak sealed documents (back story), Weinstein has now unsealed 350 documents, following a similar move by a state court in Alaska, where Lilly recently settled Zyprexa litigation for $15 million. In explaining his decision, Weinstein reasons that “Lilly’s legitimate interest in confidentiality does not outweigh the public interest in disclosure at this stage of the litigation…
“Public access is now advisable because this litigation involves issues of great public interest, the health of hundreds of thousands of people, fundamental questions about our system of approval and monitoring of pharmaceutical products, and the funding for many health and insurance benefit plans. Public and private agencies and organizations have a right to be informed. At this stage, public disclosure, congruent with our long tradition of open courts, is desirable.”
Hat tip to Drug and Device Law for alerting us to the opinion
Daniel Haszard
Zyprexa has generated a lot of bad press for Eli Lilly and they still have unresolved Zyprexa settlement claims.
Eli Lilly is ‘reaping the whirlwind’ for aggressive marketing of Zyprexa that has caused suffering and deaths.
Zyprexa is being avoided by doctors they aren’t prescribing it for new patients at all anymore.
–
Daniel Haszard Zyprexa patient who got diabetes from it.
Janet
It is great to see a judge recognizing that the documents in these cases should not be automatically considered confidential material forever. The public has a right to know what happened.
Condor
This is an important decision. I’ve done some analysis, and prepared some graphics, to suggest what the Lilly holding might mean to the various RICO putative class actions, now pending against Schering-Plough, before Judge Cananaugh, across the river, in New Jersey — relative to Schering’s Vytorin/Zetia travails — do take a look:
http://shearlingsplowed.blogspot.com/2008/09/why-judge-weinsteins-zyprexa-ruling.html
Good stuff, Ed, as ever!
Justice in Michigan
Does anyone know if the unsealed material be accessed now? If so, how? I understand some of it has been cited in Judge W’s decisions, but I assume there is a good deal more.
Condor
Yes — JiM — they are available, in the public PACER electronic file, as PDFs (the court file is very voluminous).
They cost $0.08 per page, per filing (max 30 pages per filing, so max cost per filing is $2.40) — but you’ll need to register for a PACER account with the US District Courts (you do not need to be a lawyer to do so, though) — then go to the Eastern District of New York PACER site. The case info you need to find the Lilly litigation file is as follows:
Case No.:
1:04-md-01596-JBW-RLM
In re: Zyprexa Products Liability Litigation
Jack B. Weinstein, presiding
Roanne L. Mann, referral
Date filed: 04/19/2004
Date of last filing: 09/06/2008
I may post a little of the latest motion for sanctions against Lilly, here — it was filed today — a Saturday. Wow!
Let me know if these instructions seem unclear.
Cheers!
Anne
If only the judge knew the agony caused by victims or their surviving families from his decision negating filing class-actions. I was in email contact with a family who lost their only son recently and, though money is not justice, they had hoped to pay off their mortgage and be able to not have to work so hard, particularly as they are still so devastated.
I hope at least a fraud case will put the perpetrators in prison.
Justice in Michigan
I am pretty sure that a fraud case of this sort does not include criminal charges, and thus anything resembling prison would not happen. Rather, states and relevant agencies would be “compensated” for money spent on fradulently promoted product - as in “being sold a bridge.”
Janet
For those interested in seeing documents in these cases get into the public domain, there are proposed bills in both the House and Senate called the Sunshine in Litigation Act (HR. 5884 and S 2449). Please express your opinions on these bills to your elected representatives.
Supremacy Claus
Is it OK for a lawyer to use litigation to promote a personal, non-lawyer business? For example, one has a facility that treats people with mental illness without the use of drugs.
If it is OK to to do that, is it OK to not inform the judge of such self-dealing bias?
Supremacy Claus
Janet: I support total discovery. If ever sued, I intend to demand total e-discovery on the psycho plaintiff, on the vile plaintiff land pirate, and especially on the pro-litigation biased cult criminal on the bench. Then I intend to put it all on the internet.
laurie
“If it is OK to to do that, is it OK to not inform the judge of such self-dealing bias?”
The judges decision is based on Lilly documents and patient reports, not testimony from one lawyer or doctor.
One persons “facility” doesn’t change the facts about the drug.
laurie
“Then I intend to put it all on the internet.”
And that would be your right, as it is the right of the “vile,psycho plaintiff” to do so!
Supremacy Claus
Well, no. If it is not alright to use litigation to promote a facility, the lawsuit is a pretext, a false use of the law. If it is not alright to fool the judge, a mistrial should be called. All costs should be assessed to the dishonest lawyer. And the lawyer should be banned from the court.
Janet
Atty behavior is governed by state-specific Professional Rules of Conduct. While the lawyer’s own interests should not be permitted to have adverse effect on representation of a client, this does not preclude having similar interests to one’s client.
Supremacy Claus
If torts deter the use of medication, the demand for the lawyer’s facility increases. That makes the suit pretextual, and fools the court. Are pretextual suits, and misleadibg the judge acceptable?
Janet
That does not make a suit pretextual. And also that does not constitute ‘misleading the judge’. Besides that, as best I understand, these organizations are non-profits.
Supremacy Claus
Janet: The aim of the proper suit is to make the plaintiff whole. If there is no evidence of damage by the defendant, it does make the suit pretextual. There is no evidence of damage from Zyprexa.
Let’s not argue that.
Does failure to reveal a hidden motive for the judge to consider constitute grounds to disqualify the plaintiff lawyer?
Condor
With all due respect, Supremacy Claus ["All I want for Christmas -- is the dissolution of the 'Cheney-Created Phantom Fourth Branch -- the Barnacle Branch!'. . ."(!)] –
You’ve got it exactly backwards.
New York federal District Judge Weinstein has ruled that the plaintiffs may reasonably be able to prove real, measurable, actual, out-of-pocket economic losses — losses CAUSED by Lilly’s wildly excessive claims of efficacy; and losses caused by a (not-so) stealthy promotion of off-label uses.
So — you ask us to meet you, and debate with you — around an imaginary table, in an entirely IMAGINARY kingdom — a kingdom you WISH existed, but Judge Weinstein has just ruled out.
Why would we want to do that?
Said another way, can you offer any solid dissent to the Judge’s 350-plus page order and opinion?
I’m all ears — and eyes.
Cheers!
Supremacy Claus
Judge Weinstein is a pro-litigation, biased, indoctrinated member of the criminal cult enterprise that is the lawyer profession. His opinion is a big stretch devoid of any basis in fact, law, or logic. He has not a shred of evidence to support his opinion. He is allowing an extreme, deranged, Harvard indoctrinated ideologue to impose his sick anti-medication bias on the patients of an entire nation.
Judge is violating RICO himself, by his promotion of pretextual litigation, on behalf of the criminal cult enterprise to which he belongs. Judges have given themselves total immunity, so there is no legal recourse. A strong Executive should just remove judge Weinstein and his biased colleagues from the bench, by force.
At the policy level, this cult criminal, Judge Weinstein, on the bench is a threat to clinical care. Drug companies will move to friendlier countries, taking their revenues and expertise to India and Africa. The cost of this pretextual litigation, and any payout represent the expense of finding the next blockbuster drug, which will not be found.
As a patient, I would support the formation of patient direct action groups to stop these highly threatening, bogus cases by using self-help.
Supremacy Claus
At this late date, if I were a client of a defense lawyer, I would say, demand total e-discovery of the plaintiff lawyer, and of the judge, or I fire you. If I lose the case or have to settle, I sue the defense lawyer for malpractice, including the cost of the class payment.
During the malpractice trial, I would seek to get e-discovery of the prior plaintiff lawyer and of the prior judge for my trial within a trial.
No one can withstand total e-discovery. Something would come up to force disqualification of the first plaintiff lawyer and recusal of the cult criminal on the bench.
If e-discovery is refused by the judge, I would appeal inside the trial, and seek his removal by the administrative judge. I would demand an investigation of the judge by the Department of Justice office that prosecutes corrupt officials.
The refusal of e-discovery of the adversary of the productive entity forms the basis of an appeal of any decision for the violation of the procedural due process right to a fair hearing.
If cult criminals seek to destroy productive entities, their motivations and conflicts of interest are fair game.
Condor
Erh, Supremacy Claus –
The bulk of US Big Pharma will nver relocate to Africa or India — the legal environment there is far less certain than here. It just won’t ever happen. Bank on it — thus, yours is a “straw man” argument. It is a non-starter.
As to the rest of your “views” — all I can say is “Good luck with that!”
Cheers!
Supremacy Claus
Condor: After 40, an organ will fail every few years. You will need viable drug companies far more than a cult criminal.
“Good luck with that.”
laurie
Yeah, lets get rid of the pesky legal system!! Let pharma just create drugs with no accountability for adverse effects that are discovered and suppressed!! :eyeroll:
Anne PME
I worry that if this moves forward as is, it may set a dangerous precedent that allows certain Prescription Benefit Managers, state health care offices, insurance companies and pension funds to be ‘made whole’ by failing to adequately protect patients and providers from unsafe prescriptions.
Also, in the case of state programs, does anyone know how any potential monies would be split between state, federal and taxpayer? What about increased insurance charges and co-pays?
Supremacy Claus
There is no legal system. There is only a land piracy operation plundering all productive entities. The land pirate got rid of manufacturing. The land pirate killed American shipping. The land pirate killed manufacturing. The land pirate killed the American auto maker. The land pirate killed the American family, the black one in the 1960’s, the white one in the 1990’s. The land pirate has our economy growing at 3%, while that of our rivals grow at 9%. This vile criminal enterprise is going after drug makers from all sides, with over-regulation and choke holds on the development side. New drug development is almost dead, thanks to the land pirate. Then, there is total plunder on the back end, after they have successfully made some profit. Now. They will be next to leave.
One difference between the vile land pirate and the Mob? The Mob knows it is the scum of the earth, and lacks the hypocrisy and superciliousness of the land pirate.
The land pirate has granted itself total immunity from torts and legal accountability. As productive sectors are all under siege, its growth is quite healthy.
As a patient, I feel totally threatened by the land pirate operation going on, as we speak. Self-help is totally justified against the land pirate because there is no legal recourse, and the legal system is rigged airtight by people like Weinstein. Before violence breaks out, a boycott by all productive entities of all lawyers should be attempted. No lawyer should be allowed in any grocery store, any hospital, any barbershop. No product or service should be allowed any lawyer. A database of lawyers should be compiled. They should be excluded from all products or services. Why should people serve their oppressor and the destroyer of their productive entity? To deter.
Lisa Van S
Supremacy Claus,.. Gee, you sound like a Pfizer Attorney.
Supremacy Claus
Defense lawyers make as much off this plunder as the plaintiff lawyers. No defense lawyer will ever attack a plaintiff lawyer nor ever, ever attack a judge. If these cult criminals are ever deterred, the defense lawyer loses his job. If fired by a client, the lawyer replaces the client in a minute. The defense lawyer is a total traitor working only for himself. One has to personally threaten the defense lawyer daily, and hire yet another lawyer to intimidate the vile traitor.
The defendant must protect clinical care by himself. The lawyer responds to pain. I have driven lawyers out of a growing cottage industry of a certain type of litigation, after they had made millions. They got a total ass kicking in court, and endured years of ethics complaints. I have driven other lawyers out of the state. I have driven lawyers out of being lawyers. I have sent out of state lawyers back home, never to return with a litigation that repeatedly worked where they came from. I have never driven out a judge, because they have all helped me.
All defendants have an affirmative duty to our lawyer besieged nation to never give in to these cult criminals. They have an affirmative duty to inflict endless pain on the cult criminal by asserting every legal right against the vile cult criminal. For five years, I heard the same at every deposition, “I can’t believe you sued a lawyer.” The lawyer remembers.
The defense lawyer will never scare the source of his job. I know they get together after a case, and drink to the stupidity of the public. They said that.
I want see a database of these cult criminals, and shunning by all product and service providers. I want to see them freeze in winter when the heating repairman refuses to repair their heater. The lawyer is a member of a criminal enterprise that has control of the three branches of government.
Lawyer control laws must be passed. These laws must ban the lawyer from every bench, every legislative seat, and every policy position in the Executive branch. These laws are proper, as the laws banning the convicted felon from responsible positions are. The convicted felon who will steal everything in sight causes far less damage than the vile cult criminal, that loosed millions of criminals on our neighborhoods, and destroyed the American family. No felon has ever tried to do that, as the vile cult criminal has entirely succeeded.
Roy Rogers
Dale and I think it’s time to saddle up Trigger and say, “Happy trails!”
Anne
Supremacy Claus, all well and good that you blow off steam at plaintiff lawyers. I had a pretty rough experience with them myself after the first five minutes of niceties. But you fail to address the plaintiff’s delemma, or in my case, the plaintiff’s next of kin. The Zyprexa mass torts were a joke. Many people with mental illness, who got diabetes for life, received a mere pittance, yet they have additional suffering for the rest of their lives. The families of those who died really had no option. Many states have wrongful death caps, blocking the plaintiff’s next of kin for making a very public case in court - no lawyer will touch such a case. And the mass torts; well, let me just say I am not permitted to speak of them. If pre-emption passes, I am sure you will be a happy camper. You have no concept of the pain caused by a drug that you know (now, too late) had/has lethal side effects that were hidden by the drug company.
What should be the penalty against a drug company that disregards killing?
Supremacy Claus
All effective medications have side effects. The risk is on the patient. The patient does the gambling, because ill and desperate.
Allow strict liability in clinical care, you end it. The lawyer will assassinate clinical care, to take its budget.