Jump to content



Photo

Judge Denies Class Cert. In Cymbalta Withdrawal Risks Suit


  • Please log in to reply
8 replies to this topic

#1 tomitsu

tomitsu

    Good Friend

  • Active Members
  • PipPipPipPip
  • 118 posts

Posted 29 December 2014 - 02:12 PM

Judge Denies Class Cert. In Cymbalta Withdrawal Risks Suit

By Caroline Simson

Law360, New York (December 22, 2014, 1:26 PM ET) -- A California federal judge has denied class certification in a suit alleging that Eli Lilly & Co. downplayed the withdrawal risks of its antidepressant drug Cymbalta, saying that the plaintiffs’ damages model was flawed because of complicating factors in the prescription drug market.

The plaintiffs had proposed calculating classwide damages not for alleged personal injuries, but for injuries stemming from purchasing a product with less value than they had expected due to the alleged higher risks of withdrawal side effects. The damages model, advanced by plaintiffs’ expert Dr. Joel W. Hay, used a statistical technique utilizing survey data to determine how consumers value a product, or what the market would be willing to pay

From there, he could determine the relative value that consumers placed on a drug with a lower withdrawal risk, out of which he would determine a refund ratio.

But U.S. District Judge Stephen V. Wilson's Thursday order says the plaintiffs’ proposed damages model was flawed because complicating factors in the drug market “sever the relationship” between price and value.

Those factors include the fact that the prescription drug market is heavily regulated, and that insurance plans may pay anywhere from the full price of the drug to a percentage of its full cost, the judge said. As a result, the out-of-pocket cost paid by a consumer for a prescription drug is not a proxy for the drug’s value to the consumer, he said.

“Therefore, applying the refund ratio to class members’ out-of-pocket costs fails to tether the consumers’ relative valuations of product features to Cymbalta’s fair market value. Instead, it yields an arbitrary amount that is unrelated to the amount of harm incurred by individual class members,” Judge Wilson said.

He rejected Hay’s argument that applying the refund ratio to a consumer’s co-payment would yield an accurate approximation of the difference between the consumer’s subjective valuation of the drug as represented and the drug as actually received.

Hay’s model was also flawed because it didn’t take into consideration the demand side of the market equation, the judge said.

“The court has found no case holding that a consumer may recover based on consumers’ willingness to pay irrespective of what would happen in a functioning market (i.e. what could be called sellers’ willingness to sell),” Judge Wilson said.

Reached for comment on Monday, plaintiffs' attorney Brent Wisner of Baum Hedlund Aristei & Goldman PC said he and his clients disagreed with the ruling and that the intended to appeal it to the Ninth Circuit Court of Appeals.

The "unusual" theory on which the model was based alleged not that plaintiffs should receive damages for personal injuries, but because they purchased a product that Lilly represented to have a roughly 1 percent risk of withdrawal side effects. In fact, the suit said, the risk of side effects following withdrawal was closer to 44 percent, so the drug had less value than what they expected to receive.

The judge found that the plaintiffs’ argument was different from the usual ‘benefit-of-the-bargain’ claim, which relies on the amount that a willing buyer would pay and a willing seller would accept, in that they sought to prove they were injured by proving that each class member received a drug that the average consumer subjectively valued less. This “twist on the usual argument” caused “significant” problems, Judge Wilson said.

Evaluating whether the proposed class had common issues, the judge found that because the plaintiffs made their alleged injuries separate from price by alleging that the expected value would be more, regardless of what the consumer actually paid, the effect of Lilly’s alleged misstatements would differ widely between individuals. Moreover, whether a doctor would prescribe Cymbalta to a patient even with the withdrawal risks depended on the severity of that patient’s depression

The judge also denied certification of an issue class, saying it wouldn’t advance the resolution of the litigation because the damages model was flawed.

On Monday, an Eli Lilly spokeswoman said the company was pleased with Judge Wilson's "comprehensive" opinion. 

The plaintiffs’ Oct. 2012 suit accuses Lilly of stating on the drug’s label that withdrawal symptoms occurred “at a rate greater than or equal to 1 percent and at a significantly higher rate in duloxetine [Cymbalta’s chemical name]-treated patients compared to those discontinuing from placebo,” when in fact, the risk of withdrawal systems is closer to 44 percent.

The suit brought claims under various consumer protection laws in California, Massachusetts, Missouri and New York.

Lilly is represented by Michael Imbroscio, Mark Lynch, and Phyllis Jones of Covington & Burling LLP.

The plaintiffs are represented by Michael Woerner of Keller Rohrback LLP; Michael Baum and Brent Wisner of Baum Hedlund Aristei & Goldman PC; and Harris Pogust and Matt Leckman of Pogust Braslow & Millrood LLC.

The case is Jennifer L. Saavedra v. Eli Lilly & Co., case number 2:12-cv-09366, in the U.S. District Court for the Central District of California.
 

#2 FiveNotions

FiveNotions

    God-like

  • Active Members
  • PipPipPipPipPipPipPipPip
  • 3,686 posts
  • LocationUS, East Coast
  • why_joining:
    I want my life back!

Posted 30 December 2014 - 12:19 PM

Tomitsu! How are you doing? It seems like forever since you've stopped by the forum! How are you feeling?

 

Thank you for this post about the Baum Hedlund case ...

 

Bummer this got slammed by the lower court (District) in the sense that it means the plaintiffs don't get any relief (damages) sooner ... but going up on appeal is arguably a good thing in the long term ... that is, if  the chances are strong that the Appeals court will rule for the plaintiffs .... the higher court holding carries a lot of weight .... if it gets slammed on appeal as well ... not so good ...

 

Lilly's firm, Covington and Burling, is a top tier "heavy hitter," with tremendous power connections here in DC (lobbying, Hill and White House connections, etc) ... I'm not familiar with those attorneys by name or reputation, so I'm going to do some checking later when I get a bit of time ... Baum Hedlund is a good firm, national reputation, but it's "just" a personal injury firm ... C&B eats firms like that for morning snacks ... :angry: ....

 

This is, indeed, a "novel" theory for damages ... I didn't know about it ... thank you for posting the extended text ....

 

I'm remiss in not getting in touch with Zachary Johnson at Knox Ricksen, the firm that's representing me and a number of other forum members .... I said before Christmas that I would ... we need to find out how this, and the decision in another case to deny consolidation of all pending Cymbalta cases into one and moving the consolidated action to California, impact what KR is doing ... and what the current overall "lay of the land" is for legal actions against Cymbalta and Eli Lilly ...


#3 tomitsu

tomitsu

    Good Friend

  • Active Members
  • PipPipPipPip
  • 118 posts

Posted 14 January 2015 - 05:31 PM

Hello Five Notions...I am still working towards recovery. My brain has not caught up yet. I am afraid I have permanent damage. My eyes twitch, legs will twitch from time to time I still have anxiety, there are are waves of depression that visit me from time to time and come from out of nowhere. Also waves of fear like doom and gloom thoughts that try to invade my life. I have much less days stuck in bed and am able to do some of the functions at work. However I am nowhere near the dynamo I used to be. Driving can sometimes be scary - so cannot always drive myself places. I am still having issues with bathing - not able to bathe daily and there have been times when all i want to do is get home after work and once I arrive home my main focus is get into my pj's and slide into bed and forget the world. I won't even eat. It's like a safe place for me I suppose. 

 

Had to meet with Covington/Burling already...very unpleasant but I figure if I can fight this withdrawal and having gone through and suffered the excruciating physical and mental pain I can stand to face the Eli Lilly counsel or team. I am scared and I am stressed about this but we believe strongly in what has happened to me and each and every single one of us and we must stand up and make certain that people do not go through what we have gone through ever, ever again. 

 

I look back at what has happened to me and I cannot believe I am still alive. I was so close to ending my life. Not only because of the physical pain and discomfort but all the mental anguish and to watch my spouse being dragged into this was the hardest thing to experience. The look on my loved one's face was one of fear and worry - not to mention the tears I saw...It was just something I will never ever forget. 

 

Today I have great fears of seeing any doctors and have not done so. That is my next hurdle among the many I face on a day to day basis. 

 

Hoping this will be the year where we all find peace and healing..


#4 TryinginFL

TryinginFL

    Site Partners

  • Active Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 6,273 posts
  • LocationFlorida
  • why_joining:
    Now that I have been off this poison for over 6 years, I hope to help others as they join us

Posted 14 January 2015 - 07:22 PM

tomitsu,

 

My heart is breaking for you.

 

I pray that you will find peace soon.

 

Liz


#5 tomitsu

tomitsu

    Good Friend

  • Active Members
  • PipPipPipPip
  • 118 posts

Posted 14 January 2015 - 07:41 PM

Hi Liz,

 

Thank you.

I started WD in 2012 and joined while I was on a 30 day wean from 60mg to 30mg and then when the 30 days was up it was like a switch and I was in hell! PURE HELL. 

 

I do not take any medications - ZERO. I have been doing some therapy but no meds. Even my therapist did a full eval on me and went thru my history from childhood to present over a course of many visits and he wonders why in heck I was even on Cymbalta - I cannot answer that either. I have never been diagnosed as depressed or with GAD - my only issue was stress. Today I have issues I never had pre-Cymbalta .

Post Cymbalta I am experiencing what I never even suffered from. 


#6 TryinginFL

TryinginFL

    Site Partners

  • Active Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 6,273 posts
  • LocationFlorida
  • why_joining:
    Now that I have been off this poison for over 6 years, I hope to help others as they join us

Posted 14 January 2015 - 07:53 PM

tomitsu,

 

It is inconceivable to me that you were even put on this poison drug - it was given to me by my GP at the time I lost my daughter who was 43 and did not survive open heart surgery.  Apparently he thought it would help me as I could not stop crying.  Of course he only knew what he was told by the drug reps.  I am now on my 3rd GP and she listens to me and understands my reluctance to go on any new meds.

 

The last year has been horrible  (cold turkey from 60mg)  but I went through it alone.  I now only have 2 sons  and they live on the west coast.  There were times I wasn't sure I would make it. I did and still do, take Alprazolam (Xanax) for the anxiety, but now use it mostly for the sleep issues that still remain. Thankfully, I can now concentrate on the discontinuation and actually take steps to make my life more enjoyable.  A welcome change from what it was! 

 

I know it has been hard on your spouse, but you are so lucky to have him!  It sounds as though he has been a rock for you.  I envy that. 

 

Take good care of you and know that we are all here rooting for you! :)

 

Liz


#7 FiveNotions

FiveNotions

    God-like

  • Active Members
  • PipPipPipPipPipPipPipPip
  • 3,686 posts
  • LocationUS, East Coast
  • why_joining:
    I want my life back!

Posted 14 January 2015 - 09:55 PM

Oh Tomitsu, what a struggle you have had, are having ... and yet, in the midst of it all, there you are, meeting with C&B .... a fine, fine firm ... wonderful they are representing you !  That's downright heroic!

 

(I am remiss, I never checked on the lawyers handling the case ... crapalta brain, I apologize)

 

Please let us know how this meeting with them goes ...

 

And most importantly, please, please come here more often to visit and chat with us ... you've got so much wisdom and experience that you can share with our "newbies" and all of us "not-so-newbies" .... and, you can vent to your hearts content about what's going on with you post-crapalta ...

 

In short, please stay around ! :)


#8 tomitsu

tomitsu

    Good Friend

  • Active Members
  • PipPipPipPip
  • 118 posts

Posted 16 January 2015 - 04:42 AM

Thank you ladies. This is the only outlet I have where I know I'm not crazy in terms of the WD symptoms.
FYI Covington Burling is the Eli Lilly's counsel and let's just say it wasn't the most pleasant experience.
Don't know how I made it this far. I will say that this forum helped me as a reminder that I would heal but that there would also be setbacks. The reality was that my body had to heal and only time would help me. I have no magic remedy or special potion - it's simply a miracle I am alive. I will say that I tried very hard to heal faster by trying transcranial magnetic stimulation and a natural detox but it didn't help. Things started to turn for me in middle 2014 over 2 years from the time I stopped. I used to read other people's stories on here as I was starting to suffer symptoms and was deflated and disillusioned hearing I might not see healing until 2014!!! A lot of people took more than 2 yrs to recover and live again. I lost a lot in the wake of this. Today I am suffering financial hit because of my 2 1/2 years of not being able to work. What's it all worth? What price tag can we put on such loss? It's not only about money. I was not able to live. Quite simply I wanted to die. I thiught about it. I thought about how worthless a human being I was as I lay in bed not wanting to eat or bathe. Not being able to sleep. Writhing in pain and not able to describe or express the blackness within me. The dark void that I describe as a black hole in my soul of numbness. I would spend 24 hours in bed....I would eat a little broth and some bread if I could eat....then remain in bed. I grew afraid of leaving my house. Today I feel hope. Tomorrow is less scary. The clouds are lifting...slowly but surely. I am still struggling with brain function and have not been able to do technical stuff like before. Things take longer for me to do. I used to have an almost photographic memory and memorized numbers and names plus faces...with no problem. Now I struggle to remember things and functions. Hoping that heals. I have no idea how long that will take but being with the living feels good. Thanks again. Will keep u posted.

#9 FiveNotions

FiveNotions

    God-like

  • Active Members
  • PipPipPipPipPipPipPipPip
  • 3,686 posts
  • LocationUS, East Coast
  • why_joining:
    I want my life back!

Posted 16 January 2015 - 10:13 AM

Hi Tomitsu, yeah, I realized the C&B mistake hours after I'd posted ... chalk it up to my crapalta brain ... you are not alone in what you've lost!  ... :blink: :angry:

 

I truly admire your courage ... you give me courage, and all of us, to keep fighting!  And most of all, to keep living! :)





0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users