Class Action Against Bayer in the U.S. Lipobay Deaths – Chemical Concern Expects Dismissal by U.S. Courts
German Newspaper
January 15, 2002
Translated from German. Business Die Welt Page 13.
Berlin - German and American attorneys intend to bring a class action lawsuit against chemical and pharmaceutical concern Bayer concerning possible side effects of the cholesterol medication Lipobay. The complaint is planned to be submitted before a court in Minneapolis during the course of the day, Munich attorney Michael Witti said yesterday in Berlin. According to him, this is an attempt to place the rights of German and international victims on par with those of affected American citizens. The U.S. judge will decide whether he has jurisdiction over the complaint, Witte stated.
It remained unresolved for the time being whether Germans and other non-Americans will be able to be included in the proceeding. Witti, who collaborates with American attorney Kenneth Moll, stated in this regard that "We will not permit a situation in which Bayer only pays compensation in the U.S.-and in which there are first-class and second-class victims."
Achieving compensation for Lipobay patients through the courts in Germany would require "thousands of individual proceedings," according to Witti. He asserted that the class action lawsuit in the U.S. is the perfect mechanism. He stated that failure to achieve anything in the U.S. on behalf of international victims-while a settlement with U.S. victims is possibly reached-will raise the question of "how Bayer is going to weather the storm in Germany from a political standpoint."
Bayer took Lipobay/Baycol off the market in August of last year as a result of unexplained deaths of patients. A Bayer spokesman has now said concerning the complaint: "We expect U.S. judges to dismiss the international class action." The spokesman confirmed statements the company had made during the weekend that it viewed the attempt by German plaintiffs to choose a foreign judicial venue as impermissible. In Bayer's view, disputes between German citizens and a German company should be litigated before German courts. According to Bayer, this principle is also recognized by U.S. law.
More than 50 deaths have been linked to Lipobay worldwide. There have been five in Germany. However, Bayer had emphasized that there has been no proven link to date between these cases and the taking of the medication. Bayer believes that the complaints are without merit. The withdrawal of the medication has hit Bayer hard economically.
Attorney Moll, on the other hand, accuses Bayer of having taken the product off the market too late. According to Witti's statements, he has about 2,000 clients, primarily Germans, but Italians and Greeks as well. He had already announced on Friday that the more than 150 compensatory damage complaints pending in the U.S. had been concentrated in one U.S. court. "Now things are getting started," said Witti on Monday. In addition to Bayer AG and Bayer Corp., the complaint is directed against Europe's largest pharmaceutical manufacturer GlaxoSmithKline of Great Britain. According to the complaint, Smith Kline Beecham, which merged with Glaxo Welcome to form GlaxoSmithKline, was involved in the distribution and marketing of Lipobay in the U.S. at the end of the nineties.