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Articles Posted in Pharmaceuticals

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In Saavedra v. Eli Lilly & Co., the plaintiffs brought suit against the manufacturer of the anti-depressant drug Cymbalta, alleging not that they overpaid for the product but that they were harmed because they received a product that had less value than what they expected to receive. The plaintiffs sought to certify four classes under consumer fraud protection statutes in four jurisdictions:  California, Massachusetts, New York, and Missouri. Initially, the trial court rejected these classes, stating that the plaintiffs had asserted an “unusual” theory of recovery. More specifically, the plaintiffs omitted any allegations indicating how they suffered or experienced the withdrawal symptoms.

Instead, the plaintiffs contended that they received a product that had less utility, which they defined as the benefit they believed they would receive from using the product. The trial court rejected this theory, noting that it focused only on the refund associated with users’ out-of-pocket costs. In reality, the prescription drug market’s price and value relationship is severed due to the nature of how prescription drugs are marketed and sold.

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In Watts v. Medicis Pharmaceuticals, the plaintiff was prescribed a course of treatment involving the drug Solodyn for her chronic acne. According to the plaintiff, she received two publications providing information about the drug. The first document was a MediSAVE card that outlined a program for discounted purchases of the drug and warned that the drug’s safety beyond a 12-week period had not been studied. The second document was an information insert provided at the pharmacy, detailing Solodyn’s possible side effects and safety conditions. The insert also instructed takers of the drug to contact their physician if any side effects or symptoms persisted past a 12-week period.

According to the plaintiff, the two pieces of information provided to her, the card and the insert, did not bear the same warnings and possible side effects as the FDA-approved patient label or the full prescribing information that the medical provider received with Solodyn. According to the full prescribing information, for example, the drug could potentially lead to autoimmune hepatitis or a lupus-like syndrome when the drug was ingested over a long period of time.

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