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Third Circuit Rules on Causation Element

Written by Ankin Law Office

In a blow to class action litigation, the Third Circuit recently held, in In re: Schering-Plough Corp., that plaintiffs had failed to adequately plead the required injury-in-fact causation element and dismissed their complaint.

The lawsuit, filed against Schering-Plough, the manufacturer of certain oncology and hepatitis drugs, alleged that Schering-Plough had advertised, marketed, and promoted off-label uses for such drugs.  The lawsuit included two sets of plaintiffs – one was a putative nationwide class of third-party payors and the other was a putative nationwide class of individual patient-consumers who paid for prescriptions of certain drugs for off-label uses. Both sets of plaintiffs argued that they had paid for drugs that were ineffective or unsafe for the off-label uses for which they were prescribed.

The plaintiffs argued that, as a result of Schering-Plough’s unlawful marketing practices, patients were prescribed the drugs for off-label uses instead of alternative treatments that were equally effective and approved by the FDA for the intended use.  The plaintiffs claimed that the unlawful promotion and marketing practices, as well as the use of bribes and kickbacks, encouraged physicians to prescribe the drugs for off-label uses.  As a result of Schering-Plough’s unlawful conduct, the plaintiffs argued, they paid “hundreds of millions, if not billions, of dollars for the [drugs] that they otherwise would not have paid.”

In dismissing the case, the district court found that the plaintiffs lacked standing to sue because they had failed to establish a causal connection between the injury and the misconduct.  The Third Circuit agreed, finding that the plaintiffs had failed to show a connection between Schering-Plough’s unlawful marketing practices and the individual prescriptions written by the doctors.

The decision makes it clear that it is crucial that plaintiffs provide sufficient factual information to establish a plausible claim for relief. Plaintiffs seeking to recover for injuries and damages suffered from off-label marketing practices should provide sufficient factual information to establish a causal connection between the individual doctor’s decision to prescribe the drug and the unlawful marketing practices of the drug manufacturer.

The Chicago unsafe pharmaceutical drug attorneys at Ankin Law Offices, LLC represent clients throughout Illinois and the United States. We have significant experience handling class action lawsuits regarding unsafe pharmaceuticals and are familiar with the complex legal issues that these kinds of lawsuits generally involve. Contact us at (312) 600-0000 for more information on the improper marketing of off-label drugs or unsafe pharmaceuticals.