Eli Lilly doesn't appreciate the West Virginia attorney general's broad application of that state's Consumer Credit and Protection Act. The drugmaker contends that AG Darrell McGraw has no right to sue for civil penalties under that law--a whopping $2 billion in penalties, no less--and claims that the state is "stepping into the shoes of the FDA" by trying to punish the company for Zyprexa labeling violations. "At $5,000 per violation, therefore, the State is attempting to fine Lilly approximately $2 billion for use of a product label that was approved by the FDA," the motion says.
McGraw recently dropped his claim for Medicaid-related damages stemming from alleged Zyprexa mismarketing. The state had sued Lilly, alleging that the drugmaker didn't adequately warn patients of the risk of weight gain, diabetes and cardiovascular troubles; McGraw demanded paybacks for the cost of Zyprexa and its side effects. But he withdrew that suit after Lilly asked to see Medicaid records.
Apparently this isn't McGraw's first attempt to collect from an antipsychotics maker: West Virginia sued J&J's Janssen unit under the state CCPA, claiming that a letter Janssen sent to doctors contradicted the FDA label, putting it in violation of the state consumer law as well. The state's supreme court upheld a ruling in the state's favor in that case.
Ironically, Lilly is now using the J&J case in its own defense; Janssen was held liable because it contradicted the FDA-approved label. So the state shouldn't be allowed to sue Lilly for sticking to Zyprexa's FDA-approved label now, the company claims. We'll have to wait and see how the courts rule in this case; Lilly has settled Zyprexa troubles with 33 attorneys general, while 12 states still have claims pending.
- see the story in the West Virginia Record