Metropolitan News-Enterprise


Tuesday, January 21, 2020


Page 1


Ninth Circuit:

Change in Law Insufficient to Justify Reopening Voluntarily Dismissed Suit Against Drug-Maker

Plaintiffs Asked for Axing of Action, With Prejudice, Following Adverse Rulings, Under Then-Valid Method of Gaining Review by Appeal; U.S. High Court Rejected Approach


By a MetNews Staff Writer


A dismissed putative class action against drug-maker Eli Lilly and Company, based on an alleged failure to disclose alleged severe withdawal symptoms after ceasing to take its anti-depressant Cymbalta, won’t be revived, under a decision by the Ninth U.S. Circuit Court of Appeals.

Following adverse rulings by District Court Judge Steven V. Wilson of the Central District of California, the named plaintiffs on Sept. 30. 2015, moved for a dismissal with prejudice, so they could appeal from a final judgment. The procedure was then an accepted one.

However, the U.S. Supreme Court on June 12, 2017, in Baker v. Microsoft Corp., held that a voluntary dismisssal “does not qualify as a ‘final decision’ ” that is subject to review on appeal.

The plaintiffs then sought a reopening of the final judgment, which Wilson denied. They appealed from that order, noting the Ninth Circuit’s Nov. 15, 2019 decision in Henson v. Fidelity National Financial.

‘Extraordinary Circumstance’

There, the court found that the change in law created by Baker constituted an “extraordinary circumstance” justifying a reopening.

A three-judge panel responded in a memorandum opinion filed Thursday:

“Unlike the voluntary dismissal in Henson that was stipulated to by both parties, the voluntary dismissal in this case was vehemently contested by the defendant. This demonstrates that plaintiffs ‘knowingly risked permanent finality,’ because Lilly indicated ‘its position would be that the case was entirely over if there was no appellate jurisdiction.’ ”

In opposing the plaintiff’s motion for a dismissal with prejudice, Lilly argued that before such a motion were granted, it should be allowed to complete its discovery so that the Ninth Circuit, in acting on an appeal would have a broad view of the case, asserting there could otherwise be piecemeal appeals. Wilson granted the motion, saying that Lilly “has not been able to provide case law that supports their contention  that they are entitled to full discovery before a dismissal of all the remaining plaintiffs.”

Allegations of Complaint

The complaint, filed Oct. 31, 2012, alleges:

“Lilly’s clinical trials of Cymbalta indicate that Cymbalta withdrawal is a frequent and, at times, painful condition. Users stopping Cymbalta experience symptoms such as headaches, dizziness, nausea, fatigue, diarrhea, paresthesiam, vomiting, irritability, nightmares, insomnia, anxiety, hyperliidrosis, sensory disturbances, suicidal ideation, elechical ‘brain zaps,’ seizures, and vertigo. These symptoms can range from mild to severe—the latter consisting of debilitating and painful symptoms that last several months.”

It continues:

“Since Cymbalta’s release in 2004, Lilly has warned consumers and healthcare professionals that Cymbalta withdrawal symptoms occur ‘at a rate greater than or equal to one (1) percent[.]’ This characterization is at best misleading. In truth. Lilly’s own clinical trials indicate that up to fifty-one (51) percent of Cymbalta users experience withdrawal symptoms, and approximately thirty (30) percent of user’s experience moderate or severe symptoms.”

The case is Strafford v. Eli Lilly and Company, 18-56064.


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