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Score two for Lilly in the Zyprexa litigation.
Last Friday, in In re Zyprexa Prods. Liab. Litig. (Clark v. Eli Lilly), 04-MD-1596, slip op. (E.D.N.Y May 29, 2009) (link here), Judge Weinstein granted summary judgment in favor of Lilly in a case decided under Pennsylvania law.
Sixteen-year-old Charles Clark was diagnosed with bipolar disorder and intermittent explosive disorder by Dr. Yeroushalmi. Clark may have already had diabetes at that time. Dr. Yeroushalmi prescribed Zyprexa for Clark in part because Clark had previously responded favorably to Zyprexa treatment. Yeroushalmi was aware that Zyprexa was associated with weight gain in some patients. In his deposition, Dr. Yeroushalmi testified “that he would have continued to use Zyprexa in patients had he been aware in 1999 of increased risk of high blood sugar or diabetes with Zyprexa use.” Id. at 20.
Dr. Coplon later treated Clark, and Coplon “saw no reason to take Clark off the Zyprexa and Depakote prescribed by Dr. Yeroushalmi when Dr. Coplon assumed Clark’s psychiatric care.” Id.
Unlike Dr. Yeroushalmi, Dr. Coplon “was unable to say whether he would have continued to prescribe Zyprexa to patients had he been aware in 1999 of increased risk of diabetes with Zyprexa use.” Id.
On those facts, Judge Weinstein granted summary judgment to Eli Lilly based on the learned intermediary doctrine: “There is no evidence that a different warning regarding Zyprexa would have changed Dr. Yeroushalmi’s decision to prescribe Zyprexa to Clark,” and “there is no evidence in the record that a different warning would have prevented [Dr. Coplon’s] continuation of the Zyprexa initially prescribed by Dr. Yeroushalmi.” Id. at 25.
Additionally, although the record was slightly ambiguous on certain points, the only evidence submitted by the parties suggested that Clark may have suffered from diabetes before he ever ingested Zyprexa. Lilly was thus also entitled to summary judgment for lack of proof of causation to the onset of diabetes. Id.
Fast forward over the weekend. This morning, Judge Weinstein again granted summary judgment, on the same two grounds, in In re Zyprexa Prods. Liab. Litig. (Ortenzio v. Eli Lilly), 04-MD-1596 (E.D.N.Y June 2, 2009) (link here). The interesting twist here is that the second case involved a plaintiff who resided in West Virginia, and thus applied West Virginia law. (As all readers of this blog know, West Virginia is the only state to have rejected the learned intermediary doctrine. Here’s a link to our earlier rant on that subject.)
Louis Ortenzio “was formerly a physician licensed to practice medicine in the State of West Virginia; his medical license was revoked on June 1, 2006 after he pled guilty to federal crimes of health care fraud and obtaining controlled substances by fraud.” Id. at 17. Ortenzio ingested Zyprexa when he was suffering from anxiety, major depression, and bipolar disorder. Ortenzio treated himself with free samples of Zyprexa from the sample closet at his office, wrote one prescription for Zyprexa for himself, and obtained 28 days worth of Zyprexa samples from one other physician, Dr. Williams. Ortenzio later developed pancreatitis and sued Lilly, saying that Zyprexa caused that condition.
Judge Weinstein examined the state of knowledge of both Ortenzio — the patient who was also a physician — and the treating physician. Ortenzio never read any literature or letters sent from Lilly about Zyprexa, and he did prescribe Zyprexa to his patients. He “disclaimed any knowledge of what the Zyprexa package insert says about weight gain or diabetes.” Id. at 19.
Dr. Williams testified that, as of the day her deposition was taken in 2009, she continued to believe that she exercised good judgment “in giving the Zyprexa samples to Dr. Ortenzio in April 2004.” Id.
On those facts, Lilly was again entitled to summary judgment on the failure to warn claim: “Because there is no evidence that Ortenzio ever read any of defendant’s warnings of possible risks from Zyprexa, there is no evidence from which a jury could find that a different warning by Lilly would have prevented him from taking Zyprexa.” Id. at 22.
And, as to Dr. Williams, even if providing 28 days worth of samples “were considered a ‘prescription,’ there is no evidence that those 28 tablets could have caused the injuries complained of.” Id.
There was also “no evidence of a causal connection between ingestion of Zyprexa and Ortenzio’s pancreatitis. Ortenzio had longstanding medical conditions — prior to his taking Zyprexa — that his treating physicians believed contributed to his pancreatitis.” Id. at 23. There was thus no proof of proximate cause linking the ingestion of Zyprexa to Ortenzio’s pancreatitis.
Judge Weinstein analyzed the state of knowledge of both the patient and the providing — if not the “prescribing” — physician to assess the failure to warn claim under West Virginia law. Because the patient was himself a physician, the learned intermediary waters are slightly muddy here. But these decisions make a nice point-counterpoint on the type of evidence to adduce in cases that may or may not involve the learned intermediary doctrine.
Thanks to Tony Vale, of Pepper Hamilton, who argued these two motions, for passing along news of the two victories.