Part of Mississippi's Zyprexa case against Lilly dismissed

December 2, 2009

Indianapolis-based Eli Lilly and Co. has won a bid to dismiss part of a negligence lawsuit brought by Mississippi that alleges improper marketing of antipsychotic drug Zyprexa for unapproved uses, according to Bloomberg News.

Mississippi, like many other states that have sued Lilly, is seeking reimbursement for money spent in the state's Medicaid program on Zyprexa prescriptions. However, U.S. District Judge Jack Weinstein on Tuesday granted part of Lilly's request for a decision before trial on Mississippi's claims and dismissed most of the allegations, except one that Lilly charged Mississippi more than the drug was worth.

"The use of aggregate proof to establish essential elements of Mississippi’s theories of recovery is barred by applicable law,” Weinstein wrote in a 117-page order that denied the state's request for a summary judgment ruling in its favor.

The judge, based in Brooklyn, N.Y., put further proceedings on hold pending the outcome of an appeal of similar rulings he issued in other Zyprexa cases that he’s presiding over.

Weinstein wrote that a ruling in favor of Mississippi could have put Lilly out of business.

"If allowed to proceed in their entirety, the state's claims could result in serious harm or bankruptcy for this defendant and the pharmaceutical industry generally," he wrote. "For the legal system to be used for this slash-and-burn style of litigation would arguably constitute an abuse of the legal process. Constitutional, statutory and common law rights of those injured to seek relief from the courts must be recognized. But courts cannot be used as an engine of an industry's destruction."

Zyprexa, Lilly’s best-selling drug, has been the subject of federal and state investigations into marketing practices.

The company settled with the U.S. Justice Department in January for $1.42 billion, including about $362 million to more than 30 states. Several other states that did not participate in the federal case have reached separate settlements or agreements.



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