Happy birthday, Louise Fletcher, who won an Academy Award for her portrayal of the sadistic Nurse Ratched in One Flew Over the Cuckoo’s Nest (1975).  Happy birthday also to Albert Brooks, writer/director/star of Modern Romance (1981), Lost in America (1985), Defending Your Life (1991), and a gaggle of other comedies.  Brooks also did fine work as an actor in several non-comedies, such as Taxi Driver (1976), Broadcast News (1987), and Drive (2011).  But for our money, his best performance is in Out of Sight (1998), where Brooks played a Michael Milken-esque financier-turned-prison-inmate.  By the way, Brooks’ birth name was Albert Einstein.  Brooks changed his name for obvious reasons.  He cracked that the great physicist had changed his name to Albert Einstein simply to sound smart.  Finally, happy birthday to Don Henley of The Eagles.  Henley sang and co-wrote “Hotel California” (1977), an allegory about SoCal showbiz excess.  The best line in the song is “We are all just prisoners here of our own device.”

Does that trio of birthdays suggest a theme?  Indeed, it does:  drugs and prisoners.  Today’s case is Flowers v. Eli Lilly & Co., 2015 U.S. Dist. LEXIS (D. Nevada July 10, 2015), in which a pro se plaintiff prisoner claimed that Zyprexa gave him diabetes.  The plaintiff had been prescribed Zyprexa at the beginning of his incarceration in 1997, went off it in 2003, and then back on it in 2009, continuing up through the filing of the lawsuit in 2014.  The plaintiff was diagnosed with diabetes in November 2012.  After learning of the diagnosis, the plaintiff requested that he be taken off Zyprexa.  The request was denied.  Remember, the plaintiff was a prisoner.  Patient choice seldom matters from a legal point of view in these cases (because of the learned intermediary doctrine, discussed below), but in this case it really, really does not matter. Zyprexa is an antipsychotic drug that can be used to treat very serious conditions such as schizophrenia and bipolar disorder.  The court’s opinion does not tell us why the prison wanted the plaintiff to be on an antipsychotic, but odds are there was a very good reason.


Continue Reading Little Reprieve for Prisoner Zyprexa Suit

A reader contacted us the other day, a little miffed because we hadn’t updated one of our “scorecards.” That surprised us, because we do try to keep our scorecards, and our cheat sheets, up to date as new cases are decided.  So we replied, interested to find out what we had apparently been missing.

It turns out that what we hadn’t updated wasn’t anything we considered a scorecard at all.  Rather, it was a comparison we had run between two mass torts, Aredia/Zometa and Zyprexa.  He was right, we hadn’t updated that, but also wrong in that it wasn’t something we intended to keep updated.

But we can’t expect our readers to know that if we don’t tell them.  So first, the explanation.  Our “scorecards” involve issues where the defense clearly has the upper hand.  In the scorecards, we keep track of every decision we know on a subject, good or bad.  However, most of the decisions will be good.  After all, we’ve said on numerous occasions, that because we’re an unabashedly defense blog, we don’t do the other side’s research for them.

Our “cheat sheets” are a little different.  Cheat sheets cover important issues where the law isn’t overwhelmingly favorable to our side.  It can be said (and we’ve said it) that, because those issues are more evenly divided, that it’s even more critical to get the word out about the caselaw that’s favorable to our position.  Our cheat sheets try to do precisely that. But, since we don’t care to do the other side’s research, we only include the favorable cases.

Everything else is just a post.

Our Aredia (and Zometa) versus Zyprexa post was simply that. We were interested in those two litigations because they had gotten to the stage where the defense wasn’t killing off the entire mass tort at one fell swoop (something that only preemption is really capable of doing – see Sprint Fidelis), nor was it killing off entire categories of injury at a stroke (which is what successful Daubert motions do (see Seroquel)).  Rather Aredia and Zyprexa are both like our old Bone Screw litigation – a mass tort being litigated, case by case, on (usually) learned intermediary rule issues.

But maybe it is time to check in again.  After all, our comparative post is now over two years old – my,  how time flies when we’re having fun.

But we were pushed over the edge the other day when we received from Robert Johnston, at Hollingsworth a copy of Eberhart v. Novartis Pharmaceuticals Corp., No. 1:08-cv-2542-WSD, slip op. (N.D. Ga. Oct. 31, 2011), making it a Happy Halloween indeed.  Eberhart is as good a place to start as any.  It demonstrates what good defense counsel have to do in difficult learned intermediary situations – keep pushing and keep asking questions.


Continue Reading A To Z Revisited

You may have heard Einstein’s definition of insanity: doing the same thing over and over and expecting different results. Well, if that’s right, then squirrels must be looking for TPP plaintiffs, because they’re nuts at this point if they think they’re going to get a RICO class certified (in the Second Circuit, at least).

We’ve previously reported on the Second Circuit blowing out a putative class in Zyprexa; in fact, it came in number one on our 2010 Top Ten Opinions list. Now we have more good news to report: a Magistrate Judge Report & Recommendation finding class certification inappropriate in a RICO/consumer fraud class action involving Ketek. See Sergeants Benevolent Assn. Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, Case No. 1:08-cv-00179-SLT-RER (E.D.N.Y. Feb. 16, 2011) (we’re just going to call it Ketek). Hat-tip to Gary Spahn for sending along the opinion.

Ketek is a prescription antibiotic; plaintiffs were third-party payors (TPPs) who alleged the defendant fraudulently marketed Ketek by misrepresenting its safety and efficacy, and when the “truth” came out, prescriptions of Ketek plummeted. Plaintiffs sued on behalf of a nationwide class of TPPs, alleging claims under RICO, the consumer protection laws of forty-four states, and “unjust enrichment.”

The magistrate’s report and recommendation addressed only the RICO claims and deferred the pendent state claims, as plaintiffs suggested. Slip op. at 8 and n.7. The magistrate, following Zyprexa, found that individual issues predominated and doomed class certification.


Continue Reading Another TPP RICO Class Cert Denial

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.


Continue Reading A Recent Zyprexa Ruling Lifts Our Mood

Last Friday, we promised you more on the Second Circuit’s reversal of Judge Weinstein’s Zyprexa class certification decision. Well, here’s more (and the Westlaw cite to boot).

First, the background: A bunch of third-party payors (“TPP”) sued Eli Lilly and Company, claiming that Lilly had misrepresented Zyprexa’s efficacy and side effects. UFCW Local 1776 and

More later, but we’ve just learned that the Second Circuit reversed the certification of a class in the Zyprexa litigation.  Here’s the opinion.

The grounds for reversal are:  (1) whether or not there are RICO cases that don’t require reliance, this one does.  Slip op. at 24.  (2) the plaintiff’s excess price theory is

Remember the legal spat a couple of years ago when plaintiffs’ expert David Egilman engineered the leaking to the press of a bunch of documents subject to a protective order?  We do, since we covered it extensively.  Well, as readers of those prior posts know, Judge Weinstein didn’t take too kindly (although we would have gone even further) to this flouting of his orders and entered sanction.

Well, today the Second Circuit affirmed those sanctions in an appeal filed by James B. Gottstein, one of the intermediaries that Egilman used in his little stunt:

We agree with the district court that Mr. Gottstein’s actions in acquiring and disseminating certain of these documents involved his aiding and abetting a violation of the court’s protective order through the use of sham subpoenas. The district court had the power to enjoin Mr. Gottstein in these circumstances.

Eli Lilly & Co. v. Gottstein, No. 07-1107, slip op. (2d Cir. Aug. 12, 2010).

Here are the facts of the sorry episode, as the Second Circuit described them:

The present appeal arises from the flouting of a protective order entered in high-stakes litigation concerning Eli Lilly Co.’s anti-psychotic drug, Zyprexa.  David S. Egilman, a plaintiff’s expert witness and signatory to the protective order, received confidential documents produced by Eli Lilly.  Finding much to dislike in the content of those documents, Egilman wished to distribute them to the media.  Not wanting to release the documents to the public in a manner brazenly in disregard of the protective order, he needed a suitably minded individual to act as his partner and to subpoena those documents.  Egilman contacted New York Times reporter Alex Berenson, who put him in touch with Alaska attorney and mental-health advocate James B. Gottstein, who readily agreed to help.  Gottstein, who was not a signatory to the protective order, intervened in an unrelated Alaskan guardianship case, which he used to generate subpoenas purporting to require Egilman to produce all documents in his possession pertaining to Zyprexa.  Failing to abide by the terms of the protective order, Egilman distributed a large volume of documents to Gottstein, who in turn copied and forwarded them to a variety of other interested parties.  The next day, the Times began a series of front-page articles based on the information contained in those documents.

Slip op. at 2-3.

Among other things, Gottstein got his himself enjoined.  He appealed.  The Second Circuit’s opinion affirmed “in all respects.”  Slip op. at 3.


Continue Reading Zyprexa – Second Circuit Affirms Sanctions for Disclosing Protected Documents