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Yesterday, our 15-year-old son looked at the falling flakes and wondered aloud whether it was ever going to stop snowing. He’s prone to complaint (future plaintiff lawyer) but, in truth, the ten-foot high snowbanks and the sheets of devilish, black ice are a bit depressing. We knew the arrival of 30 page Zyprexa opinion by Judge Weinstein, In re Zyprexa Products Liability Litigation, 2011 U.S. Dist. LEXIS 6207 (E.D.N.Y. Jan. 20, 2011), would move us along the happy-sad meter, but we didn’t know which direction.
Not to put too fine a point on it, but Zyprexa rulings are a big deal. The Zyprexa litigation involves a big-selling medicine prescribed for important psychological maladies (including schizophrenia and bipolar disorder), with allegations that the drug is contributing to the American epidemics of obesity and diabetes. It involves claims for wrongful death, personal injury, consumer fraud, and securities violations. There have been third-party claims, federal and state civil actions, and a federal criminal action. Decisions in the Zyprexa litigation made our ten-best list in 2010 (the Second Circuit’s reversal of Judge Weinstein’s certification of a RICO class action by third-party payors), our ten-best list in 2009 (“Pigs Get Fat, Mississippi Got Slaughtered“), and our ten-worst list in 2008 (Judge Weinstein’s certification of the RICO action). Zyprexa rulings have kept us rather busy. We’ve blogged about the case’s treatment of Daubert challenges, caps on attorney fees, and sanctions for disclosure of confidential documents. And much more.
It’s been riveting. Maybe that shouldn’t come as a surprise, because the stakes have been so high, the lawyers on both sides have been so energetic and creative, and the judge has been so … well, it’s Judge Weinstein, after all. We might not agree with more than thirty percent of what Judge Weinstein writes, but there’s no getting around the fact that he is brilliant, careful, and prolific. So a 30 page opinion by Judge Weinstein is like a new Oliver Stone film — we know it’ll be interesting and fear it’ll be infuriating.
Except that the first 26 pages consists of listing counsel. That is one of the perils of an MDL. We flipped through the pages quickly and ended up reading a very short, straightforward discussion about learned intermediaries. Anxiety gave way to delight. Judge Weinstein granted summary judgment in a case because the plaintiffs’ treating physicians testified that they “were aware of the potential metabolic side-effects of Zyprexa, including diabetes, at the time they made their prescription decisions.” 2011 U.S. Dist. LEXIS at *95. Two of the doctors supplied the strongest possible statements: “none of the information they have learned about Zyprexa would have changed their treatment.” Id. A third doctor stated that “he would not necessarily have treated [plaintiff] differently, and that today he would still ‘tend not to change that a medicine’ that a patient is already taking.” Id. at *95-96. That’s the sort of testimony that makes your average defense lawyer somewhat content, but also somewhat uneasy, as he or she is walking away from the deposition. It’s enormously useful to know that even Judge Weinstein agrees that such testimony can end a case.
As is typical, the plaintiff did not take this sort of thing lying down. First, they submitted expert reports to the effect that a “reasonably prudent doctor” would not have prescribed the drug if they had known the truth. Id. at *97. Nice try. But the actual treating doctors testified that “they were already aware of the risks of diabetes at the time Zyprexa was prescribed.” Id. Apparently, Judge Weinstein did not buy the implicit assertion by the plaintiff’s experts that the treaters committed malpractice. Moreover, the plaintiffs’ experts shaved things a bit too fine. They said that an informed physician would not have prescribed Zyprexa as a first-line agent. But, as is often the case with antipsychotics, the plaintiff had already tried other drugs. Zyprexa here was not a first-line agent. Id. Next?
There always is a next, isn’t there? And that “next” was something we’ve seen as often as the Seinfeld “The Contest” episode (with some striking similarities). The plaintiff trotted out the “overpromotion” theory. Judge Weinstein gave it short shrift: the plaintiff’s doctors were aware of the risks, and there was no evidence that they were misled by detailers. Id. at * 98. Perhaps this was the part of the opinion that gladdened our hearts most. If Judge Weinstein can scrape the overpromotion theory off his shoe in a single paragraph, maybe that threadbare theory really is headed for the dustbin of history.
None of this clears our driveway or makes the trains run on time, but it puts us in a sunnier mood and maybe that makes it easier to deal with the insults of Winter.