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Emerging Drugs & Devices
3/26/2008 5:18:47 PM EST
Tom Moylan
Alaska - Yes Alaska - Steals The Spotlight Again In Zyprexa Litigation
Posted by Tom Moylan
LexisNexis Torts Law Center Staff

There’s something about Alaska and Zyprexa that just keeps on giving. Maybe it’s the juxtaposition of A and Z; the alpha and the omega.

Or maybe it’s just happenstance. Whatever the reason, Alaska, hardly a bastion of drug litigation, has figured in two of the most newsworthy developments in litigation involving Eli Lilly and Co.’s atypical antipsychotic.

In late 2006, an Alaska attorney got a plaintiff expert in the Zyprexa MDL in Brooklyn to send him confidential discovery documents. The Alaska lawyer is a mental health advocate and was representing someone in an involuntary commitment case in state court. He got the documents, but, the MDL judge later determined, he promptly shared them with a New York Times reporter and several other mental health advocates.

Lilly moved quickly to get the genie back in the bottle, but in the end it was too late: the Christmas holiday meant people and the courts were as available as they normally are. Days dragged by. By the time the MDL court ordered the expert and the lawyer to give back the documents, copies were on the Internet, where they remain today. The New York Times wrote stories based on the documents, and neither Lilly nor Judge Weinstein were spoiling for a First Amendment fight to get those copies back.

Just five months earlier before that, an Alaska federal judge set up another Zyprexa slugfest when he remanded to state court a claim against Lilly by the State of Alaska.

After most individual Zyprexa claims were settled, lawsuits started to filter in from state governments, including Alaska. The states claim that Lilly failed to warn that Zyprexa caused severe weight gain, high blood sugar and diabetes. According to litigation in the federal MDL, many Zyprexa patients are unemployed and uninsured and depend on state welfare programs. The result, the states claim, is that they end up not only paying for treatment of psychosis but for complications from weight gain, hyperglycemia and diabetes. Several states assert claims under their unfair trade practice or consumer fraud laws.

Some of the state claims got removed to federal court in Brooklyn, where Senior Judge Jack Weinstein is keeping them, thank you very much. Alaska challenged removal and in July 2006, an Alaska federal judge remanded to state court. And 20 months later, wouldn’t you know it, Alaska’s Zyprexa case became the first to go to trial. Not the first case by a state government, but the first Zyprexa case ever to go to trial. And the MDL’s been in business since 2004.

Trial started March 3 and the state finished up its case last week. Lilly was scheduled to present its case this week when today (it may have still be yesterday in Alaska) the parties announced they were settling for $15 million and parity with any future state settlements. The amount is less than the reported $200 million Alaska was said to be looking for.

A few things to keep in mind, however: First, the Alaska state court judge made a bench ruling last week against the FDA defense. Both parties state that the state court urged mediation midway through the trial. Was the FDA ruling a silver bullet?

Second, the settlement calls for parity with any future state court settlements. Third, the New York Times reported recently that Lilly is negotiating with the federal government to settle its investigation of the marketing of Zyprexa. Recent settlements between drug companies and the federal government have typically included states who want reimbursement for their Medicaid outlays. The settlement, then, might be a harbinger of a more global settlement to come.

Then again, maybe the lawyers in the Alaska trial just wanted to go home and get warm. Brooklyn in early spring has gotta be an improvement over Anchorage. Plus, Judge Weinstein really does intend to hold his own Zyprexa trials — if Alaska doesn’t come up with another angle.

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