On Monday, the 2nd Circuit ruled that the plaintiff in the Zyprexa lawsuit knew (or should have known) that Zyprexa potentially caused his diabetes more than two years before he sued Eli Lilly.
Plaintiff was told by his doctor that he had diabetes in the late 1980s or early 1990s. He was prescribed Zyprexa in 1997 and continued taking it until late 2001 when his doctor took him off the drug because of weight gain.
Plaintiff’s lawsuit (filed in 2006) claimed that while taking the drug, his glycemic control significantly worsened and that towards the end, he developed diabetes-related complications.
Obviously, you can see the problem. Not many states have a statute of limitations that exceed 5 years. Virginia, the state at issue here, has a two year SOL. The court said, in a very short opinion, that while the discovery rule applies, the plaintiff knew enough to inquire further, which is when the limitations period begins to tick.
There have been 30,000 lawsuits brought against Eli Lilly. The cases are generally the same. The typical plaintiff took Zyprexa for psychiatric problems and alleges that Zyprexa caused complications such as meaningful weight gain, hyperglycemia, and diabetes.
The big challenge in these cases is specific causation – proving that the Zyprexa is what really caused diabetes and weight gain. There are tons of cases like this one with a statute of limitations problems. The learned intermediary doctrine also has tripped up many Zyprexa plaintiffs. Finally, many of the plaintiffs have severe psychiatric problems that sometimes make them, frankly, less attractive as plaintiffs.
You can find the opinion in Rogert v. Eli Lilly here.