Federal judge sides with Eli Lilly in woman's death

John O'Brien Jun. 1, 2009, 10:00am

NEW YORK (Legal Newsline) - A patient who suffered a diabetes-related death would not have stopped using Eli Lilly & Co.'s antipsychotic drug Zyprexa if the company had increased the warnings on its label, a federal judge recently ruled.

U.S. District Judge Jack Weinstein granted the company summary judgment in a case brought by the Estate of Donna Smith, a woman who died in 2002 after using - and requesting - the drug for two years.

In granting the summary judgment May 21, Weinstein also wrote the lawsuit was time-barred.

"Balancing the potential risks against the observed benefits of Zyprexa and Smith's desire to continue its use, and appropriately discharging their responsibility to the patient, Smith's physician determined to maintain Zyprexa medication therapy," Weinstein wrote.

"This decision was an intervening determinative causal factor between Lilly's allegedly inadequate warning, the use of Zyprexa and the patients' weight gain and/or her diabetes.

"No further notification of risks by Lilly would have changed plaintiff's decision to use Zyprexa. Failure to warn was not a cause of weight gain, diabetes or the death of Donna L. Smith."

Smith suffered from panic disorder, borderline personality disorder, agoraphobia, recurrent major depression, anxiety and bipolar disorder.

After having been prescribed several medications since 1995 and following a period of suicidal thoughts, she was put on Zyprexa in May 2000. Weinstein's order said it took less than a month for a positive response.

It was alleged that the drug helped cause her diabetes-related death, but Smith had a history of abusing drugs and alcohol and was already diagnosed as obese in 1999. She also had a family history of coronary disease and diabetes.

In January, Eli Lilly agreed to pay $1.4 billion to settle federal civil and criminal off-label marketing claims. The payment also benefited the Medicaid programs of more than 30 states that collectively received approximately $362 million.

Consumer protection claims by 33 attorneys general were settled for $62 million last year, and 12 states still have claims pending against the company. Weinstein is presiding over those cases too.

Eli Lilly has also paid $1.2 billion to settle more than 30,000 individual lawsuits.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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