A federal judge in California has remanded a Byetta pancreatic cancer lawsuit back to state court, after finding that the Plaintiff’s failure-to-warn claims against McKesson Corp. were valid.
The Byetta lawsuit, which was originally filed in San Diego Superior Court, alleged that Byetta and Victoza caused the Plaintiff to develop pancreatic cancer. While McKesson does not manufacture either medication, it does distribute them for Amylin and Eli Lilly and Co. (Byetta) and Novo Nordisk Inc. (Victoza). Among other things, the complaint claimed that McKesson partnered with the drugs’ makers to market, promote, and distribute safety information regarding the medications.
According to court documents, Amylin claimed that California-based McKesson had been fraudulently joined, and had the lawsuit moved to federal court. In doing so, Amylin argued that the Plaintiffs’ failure-to-warn claims against McKesson were preempted by recent U.S. Supreme Court decisions barring such claims against generic drug makers because they have no power to change their products’ warning labels. According to Amylin, those decisions should extend to drug distributors, who are also legally prevented from modifying drug labels.
In her motion to have the Byetta lawsuit remanded to California Superior Court, the Plaintiff argued, among other things, that the Supreme Court’s generic drug decisions did not directly apply to distributors of brand name drugs, such as McKesson. In an Order dated July 10th, U.S. District Judge Anthony J. Battaglia, agreed with the Plaintiff. “Therefore, even though the court recognizes the logic of Amylin’s argument, that the reasoning of Mensing and Bartlett apply equally to prescription drug distributors and could be extended, unless and until this rationale is extended to distributors, it is not obvious, accordingly to the well settled rules of this state, that plaintiff has absolutely no claim against McKesson,” the judge wrote.
Byetta and Victoza both belong to a class of Type 2 diabetes drugs called incretin mimetics that have raised safety concerns over the past few months. In March, the U.S. Food & Drug Administration (FDA) announced it would review the medications after a small study found evidence that they could cause changes to the cells of the pancreas that could eventually become cancerous. In April, Byetta and pancreatic cancer fears were further stoked when the Institute for Safe Medicine Practices reported that the drug had been linked to an increasing number of cases of pancreatic cancer, pancreatitis and thyroid cancer in the FDA’s adverse events database.
At least 53 lawsuits involving Byetta and other incretin mimetics have been filed in federal courts around the country, all of which allege the drugs caused users to develop pancreatic cancer, pancreatitis or thyroid cancer. On July 25th, the U.S. Judicial Panel on Multidistrict Litigation will hear Oral Arguments regarding the establishment of a multidistrict litigation for these claims. Both Amylin and Eli Lilly have consented to having Byetta lawsuits included in such a proceeding.
Victims of pancreatic cancer, thyroid cancer or pancreatitis that could be linked to Byetta may be eligible to file a Byetta lawsuit seeking compensation from Amylin and Eli Lilly. For a free review of your case, please call to speak with an attorney from Bernstein Liebhard LLP today.