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Drugmakers’ product liability case reinstated

Posted On: Dec. 7, 2017 3:02 PM CST

A federal appeals court has reinstated product liability litigation against drug companies that charges they failed to warn that their prescription diabetes drugs create an increased risk of pancreatic cancer.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court ruling in In Re: Incretin-based therapies products liability litigation and held that plaintiffs’ state law claims were not pre-empted under the U.S. Supreme Court’s ruling 2009 ruling in Wyeth v. Diane Levine.

The multidistrict litigation was filed against the companies that manufactured and marketed the drugs, including San Diego-based Amylin Pharmaceuticals L.L.C.; Indianapolis-based Eli Lilly & Co.; Kenilworth, New Jersey-based Merck & Co. Inc.; and Plainsboro, New Jersey-based Novo Nordisk Inc. Plaintiffs said the firms should have referenced pancreatic cancer in their product labeling.

In overturning a November 2015 ruling by the U.S. District Court in San Diego, the unanimous ruling by the 9th Circuit panel said it was not basing its decision on Wyeth.

Instead, it said the District Court had incorrectly relied on a 2001 ruling by the U.S. Supreme Court in Buckman Co. v. Plaintiffs Legal Committee, in which the court held that all federal laws regulating products pre-empt, or bar, state law product liability lawsuits that attempt to modify those products’ warning labels.

It said the District Court relied on Buckman to impermissibly circumscribe discovery and “to deem plaintiffs’ newly discovered evidence as ‘irrelevant’ to its pre-emption analysis at the summary judgment stage.”

“Either of these errors would independently warrant reversal,” said the ruling, in remanding the case for further proceedings.