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Last week we surprised even ourselves by including Judge Weinstein’s December 1 Zyprexa decision as one of top ten best decisions of 2009. That opinion concluded, albeit reluctantly, that Mississippi’s claims could not be adjudicated on a mass basis. Even Judge Weinstein acknowledges that sometimes (we would say more than sometimes) issues of causation, injury, and reliance need to be considered on an individual basis.


In a pair of newer summary judgment decisions, Judge Weinstein considered these types of issues on an individual basis.  These show how incredibly weak plaintiffs’ claims can be in the Zyprexa litigation. Both plaintiffs claimed that the company had failed to warn that the drug could cause weight gain and diabetes. Both cases were thrown out on summary judgment. And it wasn’t even close.


In both decisions — 2009 U.S. Dist. Lexis 117777 (E.D.N.Y. Dec. 10, 2009) and 2009 U.S. Dist. Lexis 117778 (E.D.N.Y. Dec. 10, 2009) – Judge Weinstein begins (as usual) by furnishing his stock summary of the course of the Zyprexa litigation. That summary highlights many of the problems inherent in mass tort MDLs, such as:

  • complexity and expense
  • massive, asymmetrical discovery
  • “quasi-class actions”
  • opportunistic, parasitic actions
  • ample, one-sided press coverage
  • settlements that don’t end the case but, rather, invite endless dumping of new cases into the MDL
  • etc. (And there’s a lot in that “etc.”)

 The opinions then recite some common facts, such as:  the original 1996 Zyprexa label listed the relevant adverse events; in 2003 the FDA announced that it would require a hyperglycemia and diabetes warning; the American Diabetes Association and other groups in 2003 held a conference and issued a consensus statement on antipsychotic and weight gain and diabetes; and a Dear Doctor Letter went out in March 2004.
The court once again concluded that March 2004 is the latest possible date that doctors are deemed to be aware of the risks. Depending on the facts, such as diabetes diagnosis and particular knowledge, the date could be sooner, and the statute of limitations clock starts ticking that much sooner.


 Then we get to the facts of the particular cases, and they are truly pathetic (as in weak, not as in evoking sympathy).
Plaintiff Gove (2009 U.S. Dist. Lexis 117777) had bipolar disorder and had attempted suicide multiple times. She started taking Zyprexa in 1998. She tolerated it, but was concerned about weight gain. (Red flag.) She stopped taking any antipsychotics at all for a couple of years, but went back on Zyprexa in 2002 after another suicide attempt. To put it in plain terms, Zyprexa worked for her. Gove’s treater certainly thought so. Gove had been obese for a long time, so it couldn’t have been too surprising when she was diagnosed with diabetes in 2002. (Redder flag.) The treater was aware of the association between Zyprexa and diabetes, but kept prescribing it because the benefits were worth the risks. In March 2003 the treater discussed with Gove the potential for Zyprexa to elevate blood glucose. But she didn’t want to switch to another agent. (Where are we now on the color spectrum? Crimson?  Fuchsia?) In May 2004 Zyprexa started working less well (it happens) and Gove was taken off of Zyprexa because of concerns regarding — wait (weight?) for it — weight gain and diabetes. In short, the treater was actively engaged in making well-informed risk-benefit decisions.


 Judge Weinstein had several independent bases for issuing summary judgment against this plaintiff. First, by August 2003 at the latest, Gove knew that Zyprexa might have played a role regarding her diabetes. Since she didn’t file her case until well after the limitations period ran, she was out of luck (and out of court).  Second, plaintiff couldn’t show that different (stronger, clearer, faster, higher, etc) warnings would have made any difference. The treater had been deposed and said that different warnings would not have affected the prescription decision. Third, the learned intermediary doctrine is alive and well in Arizona (which supplied the substantive law) and the treater in this case was pretty darned learned on the potential risks of Zyprexa. So much for the Gove case.


 If anything, the other case was even weaker. Plaintiff Broderick (2009 U.S. Dist. Lexis 117778) had a history of obesity, hyperlipidemia, heart disease, depression, schizoaffective disorder, and multiple suicide attempts. She began taking Zyprexa in December 1999. Plaintiff’s expert witness submitted a report indicating that Broderick’s diabetes post-dated her Zyprexa use, but Judge Weinstein actually read the medical records and found that Broderick had been diagnosed with diabetes in 1998 and was taking insulin in June of 1999. (Aaah, plaintiff experts – it’s so refreshing when they play true to form!) Just as with Gove, the treaters were well-informed. Just as in Gove, the treaters thought that Zyprexa worked well for the patient and that the benefits were worth the risks. And, just as in Gove, Judge Weinstein had no difficulty concluding that the statute of limitations had run and that the learned intermediary doctrine (this time under California law) ended the case. There was also a causation dimension to Broderick, but now it involved medical injuries. Unless plaintiff’s expert was also going to discuss the possible role of a time-machine (don’t laugh, could happen with some of those experts), it was not possible for a jury to conclude that Zyprexa caused a case of diabetes that was diagnosed before the plaintiff ever took the drug. Nor was there any evidence that Zyprexa had exacerbated the condition.


 And there you have it. A couple of nice, well-reasoned summary judgment opinions. Reassuring, isn’t it?


 Well … not entirely. Because this pair of frail cases is just the tip of the iceberg. For anybody who labors in the fields of mass tort, it is not at all unusual for plaintiff lawyers to cobble together inventories of thousands of cases, many of which involve plaintiffs:


  • who never used the drug or device
  • whose usage was so de minimus as to preclude any rational finding of causation
  • who are not injured at all
  • who had the injury before they ever used the drug or device
  • who knew or should have known of the bases of their claims so long ago that every statute of limitations in the country has run
  • whose treaters were learned intermediaries making a conscious risk-benefit decision, and such decision would be unaffected by whatever purple prose the plaintiff thinks should have been crayoned into the warnings
  • who are homicidal, prone to serial child-molesting, or already in jail. (You probably think we just threw that in to see if you were really following along. But no, that’s something we’ve actually seen in MDLs.)

Anybody who works on drug and device litigation – the extra-strength MDL versions – knows that (often well) over 90% of the cases filed would never be filed as individual actions. Plaintiff lawyers exploit the overwhelming numbers of cases in MDLs knowing that the forest hides the (Charlie Brown Christmas) trees:  that it’s just too hard to discover the gnarly facts of all the cases
Defendant-companies know it too, and that makes settlement considerations rather difficult to swallow. It’s hard to justify paying for cases when most are pure bilge.
Even though some courts don’t believe it, it really, really makes sense to devise methods for testing the cases and making sure that the specious cases get tossed aside. If plaintiff lawyers won’t do it (and one would think that things like Rule 11 would concentrate one’s mind on such things, but alas …) then judges need to employ mechanisms such as Lone Pine orders (how about a Lone Pine-type procedure for the statute of limitations?) or bundling, or pilot discovery programs to ensure that cases like Gove and Broderick are teed up for dismissal sooner rather than later.  


In the end, we like these December 10, 2009 decisions. We just wish they could have come a couple of years earlier, and without all the need to waste discovery resources on cases that never should have been filed in the first place.