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Blogging attorneys dissect Miss. Zyprexa decision

By John O'Brien | Dec 9, 2009



NEW YORK (Legal Newsline) - Mississippi Attorney General Jim Hood's Zyprexa lawsuit "got slaughtered" by a federal judge, two leading legal bloggers recently wrote.

James Beck and Mark Herrmann analyzed a recent 117-page order by U.S. District Judge Jack Weinstein that granted Eli Lilly & Co. summary judgment on all but one of Mississippi's claims on their blog "Drug and Device Law."

On Dec. 1, Weinstein called the lawsuit, filed by Hood's office through private attorneys, "a slash-and-burn style of litigation."

The title of the blog's entry is "Pigs Get Fat, Mississippi Got Slaughtered."

"The Court's decision was, at times, visibly reluctant," the entry says.

"It concluded that the claims brought by Mississippi couldn't be adjudicated on a mass basis and - since the state was unable or unwilling to prove them one-by-one - there was no evidence on critical causation, reliance, and injury points, which required entry of summary judgment."

Eli Lilly is alleged to have promoted Zyprexa for off-label uses. The drug also allegedly caused weight gain-related side effects like diabetes.

Twelve states didn't participate in a 33-state, $62-million settlement last year. Of those 12, six have reached eight-figure settlements while six are still holding out.

Three of those states -- Arkansas, Pennsylvania and Mississippi -- are represented by Bailey Perrin Bailey of Houston.

The entry makes a note of Mississippi's inability to settle. Weinstein had pushed for a mass settlement, appointing a special settlement master and even ordering the states to take 30 days off from their suits to try to reach an agreement last year.

"Mississippi was - again unable or unwilling - to come to such a settlement, so its claims, which were legally meritless in any event, come to naught," the entry says.

"The court firmly rejected the notion of multiplied statutory penalties, and stated, in dictum, that such penalties were probably unconstitutional as 'excessive fines.'

"Assessing a penalty was in the 'discretion' of the court, and that discretion turned on many factors -- off-label use, medical necessity, benefit to the patient, harm to the patient, what the medical community knew at the time and particular allegations of misconduct -- the court wasn't about to undertake such an exercise.

"So by taking and sticking with an extreme position, Mississippi ended up getting essentially nothing. The court pointed out that the only money Mississippi received was less than several hundred thousand dollars in 'holdbacks' from individual settlements that included Medicaid reimbursements."

Beck and Herrmann also wrote that Weinstein was complimentary about the effectiveness of Zyprexa, an antipsychotic.

"A significant source of the court's irritation with Mississippi (and presumably any other state, had any been so foolish not to settle claims that would have suffered similar fates) is the simple fact that Zyprexa (and other similar drugs) works - it brings about favorable outcomes - for both on-label and off-label uses," the entry says.

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

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