We like defense wins.
(Film at 11.)
And we like to contribute to defense wins, even when we’re not directly involved in the cases.
(That’s one reason why we fritter away our lives blogging.)
So we thought we were going to be really pleased when an automatic computer search told us that a trial court had already cited the recent Fifth Circuit decision in Ackermann v. Wyeth in an opinion granting summary judgment in another antidepressant-suicide case.
We take particular pleasure in Ackermann because we were both involved in the case: Herrmann argued for the defendant; Bexis wrote an amicus brief for PLAC.
(Beck and Herrmann! They don’t just blog! They win cases, too!)
Anyway, Eschete v. Roy, No. 06-2835, 2008 U.S. Dist. LEXIS 34871 (E.D. La. Apr. 29, 2008), was not quite as satisfying as we had hoped.
Don’t get us wrong — it was good. We just don’t feel as though Ackermann had much to do with it.
Justin Eschete checked into an in-patient treatment program after he was discovered diverting Demerol from the hospital where he worked. Dr. Roy diagnosed Eschete with depression and prescribed Cymbalta. Eschete was discharged with a prescription for Cymbalta, later re-hospitalized for treatment, and then discharged again. Nineteen days after the last discharge, he committed suicide by hanging. His wife seemingly sued both the treating physician and the drug manufacturer, although this decision analyzes only the product liability claims — failure-to-warn and design defect — brought against the drug company.
Eli Lilly sought summary judgment on two grounds. First, there was no direct evidence that Eschete was taking Cymbalta at the time of his death. Id. at *7. We kind of liked Lilly’s evidence on this point (including the post-mortem toxicology analysis that was negative for antidepressants in the blood), but the court found sufficient circumstantial evidence to create a disputed issue of fact. The court denied summary judgment on the issue whether Eschete was taking Cymbalta at the time of his death. Id. at *12.
Eli Lilly also sought summary judgment based on the learned intermediary doctrine. That’s where the court cited Ackermann, so we were all excited. But this was the relevant evidence:
“Dr. Roy testified that even if a different warning had been supplied, he would not have changed his decision to prescribe the drug. . . . Dr. Roy further testified that even the warning section on the current package insert of Cymbalta, which was not in place in 2004, would not have persuaded him not to prescribe Cymbalta to Eschete.” Id. at *15-*16.
Heck, it doesn’t take a hot-off-the-presses Fifth Circuit decision to win summary judgment when you have that kind of factual record. That claim is barred by the learned intermediary doctrine anywhere, anytime (except in West Virgnia, of course). Here we thought we were providing help to a kindred spirit, and it turned out the spirit didn’t need our help at all.
The Eschete court also found that the package insert for Cymbalta contained information about the risk of suicide, so plaintiff’s failure-to-warn claim was seemingly also barred because of the adequacy of the warning Lilly provided. Id. at *16.
This is a nice little win for Lilly, but we’re afraid we can’t claim any credit for it.
It was just too easy.