But a South Carolina federal judge would have none of it, finding in favor of the plaintiffs and rejecting the petitions by Pfizer Inc. to have the 10 cases set aside.
“As the Supreme Court has repeatedly noted, Congress did not provide a federal remedy for consumers harmed by unsafe drugs, and that Congress is well aware of the prevalence of such state tort litigation,” said US District Judge Richard M. Gergel, who is presiding over the MDL. “The court finds no reason to believe Congress intended to preempt Texas products liability claims simply because the Texas legislature has allowed a plaintiff to negate a statutory affirmative defense by showing that the defendant withheld or misrepresented information to the FDA.”
Pfizer had argued that the Federal Food, Drug and Cosmetic Act preempts an exception to a statute on the books in the state of Texas that creates an affirmative defense: that a pharmaceutical manufacturer is not in fact liable for failure-to-warn provided that warnings by the US Food and Drug Administration (FDA) duly accompany the product.
The judge held that such an interpretation was not what Congress had in mind with the Act. Pfizer, in its petition, noted that plaintiffs would have to show a determination by the FDA that the regulator had been defrauded, in order to succeed on a claim. For that reason, according to the defendants, the Texas statute is preempted.
Not so, said the judge. He let the 10 cases stand in the Lipitor Diabetes Lawsuits MDL.
READ MORE LIPITOR LEGAL NEWS
It was a year ago, in February 2014 that more than a thousand cases alleging atorvastatin type 2 diabetes were consolidated in the Lipitor Diabetes Lawsuits MDL. Plaintiffs and the legal community alike are looking toward October of this year for the first scheduled bellwether case to begin. Cases are In re: Lipitor (Atorvastatin Calcium) Marketing Sales Practices and Products Liability Litigation, MDL 2502, In the US District Court for the District of South Carolina.