While most of the buzz late last week concerned the Darvocet affirmance, we also recommend that defense counsel check out this case: Amos v. Biogen Idec, Inc., 2014 WL 2882104 (W.D.N.Y. June 25, 2014). Amos involved the prescription drug Tysabri. The allegation in Amos, as in most Tysabri, cases, is that the drug caused an opportunistic type of CNS infection.
Another useful holding in Amos is the last one, concerning the New York consumer protection statute. There, the court’s logic seems equally applicable to similar statutes elsewhere. Amos dismissed the consumer protection claim as a matter of law, because under New York’s learned intermediary rule, claimed deficiencies in information directed solely to physicians isn’t “consumer oriented” so as to
fall within a consumer protection statute:
Neither design defect claims nor consumer fraud claims are at the heart of prescription medical product liability litigation – that heart remains failure to warn claims (which were not dismissed in Amos) – but this opinion provides useful authority for getting rid of these increasingly prevalent claims, which can greatly increase the scope of discovery and evidence at trial.