Lilly Adds Weapon in Zyprexa Suits

-Indianapolis Star

11/07/2004 - Eli Lilly Co. is using a new legal tactic to stall the filing of potentially hundreds of new lawsuits over its best-selling drug Zyprexa.
While the Indianapolis drug maker already faces 125 lawsuits over Zyprexa, it has negotiated deals with trial lawyers that could delay the filing of lawsuits on behalf of more then 1,800 other potential claimants.
Lilly is pursuing so-called “tolling agreements” for the first time in any product-liability cases against the company because it sees legal benefits by using them, said Curt G. Oltmans, associate general counsel for Lilly.
The agreements require would-be plaintiffs to file any lawsuit against Lilly in one federal court, rather than the hundreds of state courts. Consolidating Zyprexa cases in federal court reduces Lilly’s legal fees, because pre-trial discover of evidence is done once and shared with all plaintiffs, Oltmans said.
Plaintiffs also must agree not to ask for personal injury claims if they sign a tolling agreement, Lilly said in a federal securities filing Friday.
In return, Lilly agrees to a lifting of the statutes of limitation that set a deadline for when a person must file a product-liability case against a manufacturer. The state-set statutes range from one to four years after the time the alleged injury occurs.
Lilly expects some of the 1,800 people whose lawyers have signed tolling agreements with Lilly will never file lawsuits.
“Some of those…they won’t end up filing” because their attorneys will find their cases weak, Oltmans said.
Zyprexa lawsuits began to mount about a year ago, after studies showed that the antipsychotic is liked to higher rates of diabetes, weight gain and high blood pressure in users.
Lilly now faces about 125 Zyprexa lawsuits, 72 of which are consolidated for pre-trial purposes in federal court in the Easter District of New York.
The mass lawsuits are part of an increasingly litigious environment for all drug makers over side effects of some of their best-selling drugs.
Zyprexa is critical to Lilly’s financial health. The schizophrenia and bipolar disorder drug contributed a third of Lilly’s total sales of $12.58 billion last year.
But adds seeking clients by trial lawyers in Zyprexa litigation have helped scare patients and doctors from using the drug, said drug stock analyst David Moskowitz, of Friedman Billings Ramsey, in a recent investor report. Zyprexa saw a 22 percent decline in U.S. sales in the third quarter of this year compared with the year-ago period.
Trial attorneys have asked U.S. District Judge Jack Weinstein in New York to declare the case a class action, which would allow anyone to join the litigation who thinks he or she was harmed by Zyprexa.
Lilly is fighting the class-action request. The drug maker expects to cite in its defense a recent decision by another federal judge to reject class-action status in lawsuits over a rival antipsychotic, Seroquel, made by AstraZeneca Pharmaceuticals.
In August, the judge in Florida said the Seroquel case, which also alleges the drug causes weight gain and high blood pressure, is “clearly unsuited for class-action treatment.”
“We believe that (decision) supports our position” in the Zyprexa litigation, Oltmans said. A lawyer who sits on the plaintiffs’ steering committee in the Zyprexa federal case did not return a call for comment on the Florida ruling’s significance.
As part of discovery in the federal action, Lilly said it has turned over 1 million pages of documents to trial lawyers so far and has allowed 13 of its employees to be deposed.
Both sides aim to wrap up fact discovery by December 2005, Oltmans said. The federal cases then would be shipped back for trial, to the courts where they originated, in late 2006, he said.
It’s possible one of the state cases could come to trial earlier, perhaps later next year, he said.
The 125 Zyprexa cases Lilly faces are fewer than the hundreds of lawsuits it faced over two other drugs it made – Prozac and DES – that became embroiled in litigation.
Lilly also has been named as a defendant in 250 lawsuits over the mercury-based vaccine preservative thimerosal. Those cases are assigned to a federal vaccine court and none has come to trial. The lawsuits allege thimerosal may have caused autism in vaccinated children.

If you or a loved one have experienced Zyprexa side effects you may be entitled to compensation. Contact the Zyprexa attorneys of Ennis & Ennis today for a free confidential case evaluation. Our on staff nurse and lawyers are standing by to answer any questions you may have regarding Zyprexa side effects, a possible Zyprexa class action lawsuit, or any other type of Zyprexa litigation..