Judge Weinstein, he of the creatively lawless class-action certification (e.g., May 2005 (Simon II) and Oct. 1 (Schwab)), has refused summary judgment in a similarly questionable putative class in In re Zyprexa Products Liability Litigation, No. 04-MD-01596. The putative class plaintiffs allege no physical injury (they cannot, as this would create wildly individualized issues). Nor do they allege that they were sold a drug that failed to safely and effectively treat the conditions for which it was prescribed. (As even Weinstein concedes, "There is little doubt about the usefulness of Zyprexa for both on-label and some off-label purposes.") Rather, they allege that Eli Lilly's speech about the drug, while truthful, increased demand for the drug. (Why such a suit does not run afoul of the First Amendment is not immediately obvious, nor is it addressed by Judge Weinstein.) The goal is one Roy Pearson can identify with: bring a lawsuit seeking wildly inappropriate damages through overbroad application of consumer fraud laws to a situation where noone is actually injured. Weinstein refused � 1292(b) certification of interlocutory appeal until after class certification is decided, however, which will prevent the Second Circuit from correcting his mistake until after Eli Lilly spends tens (and perhaps hundreds) of thousands opposing what may be a futile class certification motion and even more on discovery waiting for the opportunity for a Rule 23(f) appeal.
Coincidentally (but perhaps not out of happenstance), must-read drug-law-bloggers Beck and Herrmann address precisely the questions at issue in Zyprexa in lengthy detail in a post today, but do so without once mentioning the word Zyprexa, simply by analyzing in detail a decision out of the Southern District of Florida about a case with an identical theory, Prohias v. Pfizer. Unlike Judge Weinstein, however, Prohias got it right and threw the vast majority of the case out. Judge Weinstein does not cite the May Prohias decision much less attempt to distinguish it or explain why that court is incorrect.