Today, we chronicle two more decisions from the Zantac MDL.  Once again, kudos to this MDL transferee judge for outstanding willingness to tackle legal issues, and decide them, at an early stage of the litigation.  Because we’ve gone through these issues before, here and here, we discuss these latest rulings in one post.

Chronicle

It’s been a few years since we talked about the conundrum facing pharmacies if they suspect prescriptions are medically unnecessary or improper. Back in 2015, two cases were decided within days of each other that allowed claims to go forward suggesting that a pharmacy could be potentially liable for both filling suspect prescriptions (see here

This post comes from the non-Reed Smith side of the blog.

As we noted yesterday, we aren’t much for New Year’s resolutions.  But this blogger was recently invited to the home of friends who have a slightly different tradition.  On New Year’s Eve, as you leave their home, you are invited to take a slip of paper from a basket sitting by their front door.  On each paper is written a random word.  What you do with the word is up to you.  I was told some people tape them to their computer monitor or tack them on a bulletin board.  Others tuck them in their wallets or purses.  The idea is simply to contemplate the word.  What does it mean?  What does it mean to you?  Does it make you want to do something or not do something?  It is more about reflection than resolution.  Maybe that reflection will lead to something positive – maybe not.  But we find the exercise intriguing.  The idea that just one ordinary, everyday word might have a profound impact.  We are only day 5 into the New Year, but having a 5-minute daily time out to “contemplate” has so far been very relaxing.  If nothing else comes of it, that would still be a win.

And speaking of wins . . . . let’s talk about Hernandez v. Walgreen Company, 2015 Ill. App. LEXIS 986 (Ill. App. Ct. Dec. 28, 2015).  Here a single word made all the difference as well – duty.  Actually the lack thereof is what is important.  Suit was brought on behalf of the estate of the decedent who died allegedly from methadone intoxication.  Id. at **2.  Plaintiff sued the decedent’s doctor who had prescribed the methadone for back pain and the pharmacies that had filled the prescriptions.  Id.Continue Reading No Pharmacy Duty, No Pharmacy Liability

On Friday, we posted about a Florida court that allowed negligence claims against a pharmacy that did nothing more than fill prescriptions as they were written (Oleckna).  As you can imagine, we had some reservations about the ruling.  Well, those reservations were driven home when we happened upon another recent pharmacy liability case, this one in Indiana – Kadambi v. Express Scripts, 2015 U.S. Dist. LEXIS 13607 (N.D. Ind. Feb. 5, 2015).

If we call Oleckna a “damned if you don’t” case, then Kadambi is the example of “damned if you do.”  Which leaves the question – what is a pharmacy to do?

Plaintiffs in Kadambi are an endocrinologist, Dr. Kadambi, and 8 of his patients for whom he prescribed human growth hormone (HIGH).  While plaintiffs allege that the prescriptions were medically necessary, the defendant pharmacies refused to fill HIGH prescriptions from Dr. Kadambi because they believe the prescriptions might violate federal law making it a “crime to knowingly distribute HIGH” for improper purposes.  Id. at *3.  Defendants alleged that they had a good faith belief that Dr. Kadambi was prescribing HIGH for non-medically acceptable reasons and/or that he was affiliated with organizations that advocate
off-label use of HIGH.  Id. at *4.

Plaintiffs advanced essentially two causes of action against the pharmacies – violation of Indiana’s statute governing pharmacies and defamation.   While the court dismissed the statutory claim, it allowed the defamation action.  We’ll go through the court’s ruling, but our real interest lies in the fact that both Kadambi and Oleckna are moving forward.Continue Reading The Flip Side of Pharmacy Liability

A pharmacy case from Florida caught our eye this week.  We still have fresh in our minds the survey that Bexis posted a few days ago of state laws limiting the liability of non-manufacturing sellers of prescription medical products.  It was an impressive collection, as Bexis-prepared surveys tend to be, and it covered the potential liability (or lack thereof) of distributors, suppliers, pharmacies, etc.  You know, anyone in the chain who did not manufacture the drug or device and who typically would have no role in developing the product or its warnings. It comes up a lot for us in the context of removal jurisdiction, where plaintiffs fraudulently join local or non-diverse defendants in an attempt to prevent removal to federal court.  The plaintiffs never—and we mean never—actually pursue claims against the local defendants, and we routinely resist their motions to remand cases to state court with arguments that there are no viable claims against mere pass-through sellers of pharmaceutical products and medical devices.

In this regard, the result in Oleckna v. Daytona Discount Pharmacy, No. 5D13-3057, 2015 WL 477841 (Fla. Dist. Ct. App. Feb. 6, 2015), is not helpful because it allows negligence claims against a pharmacy that did nothing more than fill prescriptions as they were written.  In Oleckna, the patient was being treated for stress, and his doctor prescribed Xanax and narcotic pain medication over a period of two years.  Id. at *1.  The patient, sadly, died allegedly “due to combined drug intoxication” of the prescribed medications, and his estate sued the physician who wrote the prescriptions and a pharmacy who filled many of them—allegedly more than 30 prescriptions.  Id. Continue Reading Florida Court Races to Questionable Conclusion on Pharmacy Liability

This post is solely from the non-Reed Smith side of the Blog.

A court within the Fifth Circuit has held that the FDCA impliedly preempts unfair-competition and consumer-protection claims asserted by a drug manufacturer against a compounding pharmacy. Despite generally rooting for drug manufacturers, we are okay with the decision, Zyla Life Scis., LLC v.

One aspect of Pietrantoni v. Corcept Therapeutics Inc., ___ F. Supp.3d ___, 2022 WL 16857262 (D. Mass. Nov. 10, 2022), has troubled us ever since we first noticed the opinion.  But we recently noticed that Pietrantoni had been selected for publication, so we decided the issue was important enough to examine in depth.Continue Reading The Problem with Pietrantoni – Unraveling Undertaking Liability

Today’s case, Bradley v. CVS Pharmacy, Inc., 2021 Cal. App. LEXIS 451, 2021 WL 2176797 (Cal. Ct. App. May 28, 2021), is not about drug or device product liability, but its discussion of deference to administrative agencies is interesting. There are several different but closely related doctrines that either require or permit judicial deference