There is little dispute as to the possibility of tardive dyskinesia and the increase in risk for same when Zyprexa is used for an extended period of time. To that end, the product label for Zyprexa properly denotes the risk.
However, what appears to have scuttled the case for Boehm is the expert testimony of a psychiatrist who put forward an opinion that 15 percent of Zyprexa users would be expected to develop some form of tardive dyskinesia after using Zyprexa successively for three years.
Attorneys for the defendant in Boehm v. Eli Lilly & Co., 13-1350, US Court of Appeals for the Eighth Circuit, took exception to the validity and source for that opinion. To wit, the expert witness cited two websites - one maintained by a mental health advocacy group and the other a fellow psychiatrist denoting his services as an expert witness. Both sites referenced the 15 percent figure without any provision for supporting data or sources, according to the three-judge panel that heard the appeal.
Another technicality that proved to derail the case for the plaintiff, who was prescribed Zyprexa for bipolar disorder, was testimony from the expert witness that referenced the findings of a peer-reviewed study that suggested second-generation antipsychotics such as Zyprexa did not present as high an incidence rate for tardive dyskinesia as first-generation drugs, but posed a risk that “remains substantial” nonetheless.
It was found, however, that the study findings appeared to include some contradictions, and lawyers for the defense - and both courts agreed - held that the study did not aim to establish an incidence rate for tardive dyskinesia relative to Zyprexa.
In the end, the appellate court agreed with the lower court that the 15 percent figure could not be supported and was therefore discredited. Further, a physician for the plaintiff testified that had he known about the 15 percent rate he would not have prescribed Zyprexa to his patient. Court noted, however, that the aforementioned testimony came only after the discredited figure was shared with the physician.
In the end, the three-judge panel with the appellate court upheld the lower court’s finding that the 15 percent figure could not be supported and, thus, the failure-to-warn aspect of the case could not be adequately proven.
Tardive dyskinesia is not the only adverse reaction associated with Zyprexa. Zyprexa hyperglycemia is also an issue, and many a plaintiff has discovered the hard way an association between Zyprexa and diabetes.
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But not always. And of all the Zyprexa side effects, tardive dyskinesia can have the most dramatic impact on an individual’s life and livelihood. While Zyprexa diabetes can be serious, the latter is not visible. Tardive dyskinesia is both visible and debilitating, and can cost an individual a career.
It is not known if Boehm’s Zyprexa lawyer will take the case to a higher appellate court. Despite the loss of the case based on unsupported evidence, the plaintiff continues to suffer…