Healthy Skepticism Library item: 13360

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Publication type: news

Goldstein J.
The Supreme Court and Alaska’s Zyprexa Case
The Wall Street Journal Health Blog 2008 Mar 27
http://blogs.wsj.com/health/2008/03/27/the-supreme-court-and-alaskas-zyprexa-case/?mod=WSJBlog?mod=yahoo_hs

Full text:

Why did the state of Alaska settle its Zyprexa case against Eli Lilly for only $15 million, a pittance for a big drug maker and a fraction of the $200 million the state was reportedly hoping for?

It may have had something to do with Wyeth v. Levine, a Supreme Court case likely to be decided later this year. (For details, click here to see the docket.) Wyeth is arguing that, because the federal government approves drugs to be sold nationwide, that finding trumps state laws on drug-related issues. The doctrine, known as pre-emption, could have thrown a wrench in Alaska’s case.

“We had this issue with the Supreme Court deciding pre-emption this fall that could have completely unwound any victory we might have had,” Alaska’s senior assistant attorney general told the New York Times. “The state took a very strong and hard look at their case, and recognized that even if they were successful, they had a substantial chance of losing their case on pre-emption grounds,” a lawyer who represented Lilly told the paper.

Another factor is just how small Alaska’s population is – only 670,000 people live in the whole state, the WSJ points out. Sure, $15 million doesn’t sound like much for a whole state. But if Lilly had settled with Austin, Texas (pop. 672,000), for $15 million, it might make the outlook for settling Zyprexa cases throughout the country look a bit bleaker for the company.

The settlement came days before a jury trial was set to wrap up. Three of the 12 jurors were leaning toward Lilly and the rest were for the state, the Anchorage Daily News reports. But those in the minority would likely have shifted their positions during deliberations, one of the jurors who favored Lilly told the paper. If the jury found in favor of the state, a second jury would have determined the damages, the paper notes.

Zyprexa is a popular antipsychotic drug, but it’s been linked to weight gain and an increased risk of diabetes. Lilly still faces Zyprexa-related investigations from the feds (who wouldn’t be affected by the pre-emption ruling) and from other states.