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District Judge Looks to Restatement (Third) of Torts in Throwing Out Plavix Suit

Thursday, October 13, 2011
Michael F. Bahler | Bloomberg Law Mills v. Bristol-Myers Squibb Co., No. 11-cv-00968, 2011 BL 260049 (D. Ariz. Oct. 7, 2011) The U.S. District Court for the District of Arizona refused to revive a products liability suit brought by a woman who allegedly suffered a pulmonary embolism after taking the Bristol-Myers Squibb Co. blood thinner Plavix. In January 2009, Arizona-resident Beatrice Mills was prescribed Plavix to treat her peripheral vascular disease. Following her physician's instructions, she took the medication once per day along with aspirin. After being on the drug for less than a week, Mills began to bleed extensively from her rectum. She was hospitalized and required surgery to stop the bleeding. She returned to the hospital on January 25, 2009, and was diagnosed with bilateral pulmonary embolism and thrombocytopenia. In January 2009, Mills sued Bristol-Myers in Arizona state court, alleging that Plavix was defectively designed. After the case was removed to federal court, Bristol-Myers moved to dismiss all counts with prejudice. The Court granted the motion, ruling that Mills's "conclusory" allegations, which mostly recounted her experiences while taking the drug, did not rise to the level of legal plausibility. See Mills v. Bristol-Myers Squibb Co., No. 11-cv-00968, 2011 BL 209710 (D. Ariz. Aug. 12, 2011). Mills subsequently moved for leave to file an amended complaint. The new complaint specifically alleged that Plavix's chemical structure was more dangerous and less effective for people who carried the CYP generic variant. A medical study had reported that CYP carriers who used Plavix experienced higher rates of death from cardiovascular causes, heart attack, and stroke. Mills further alleged that taking Plavix with aspirin increased the risk of bleeding complications for people with peripheral vascular disease. The Court stated that Mills pled the design defect claim under the Restatement (Second) of Torts even though "this no longer appears to be the correct standard for design defect claims in Arizona." While Arizona had never formally adopted the Restatement (Third) of Torts, the Court explained that the state had shown a willingness to rely on it as the current expression of the law. The Court noted that the Restatement (Third) provides that a prescription drug has a design defect only if it does not offer a net benefit for any class of patients. Applying this definition, the Court rejected Mills's claim since the alleged defects only affected carriers of the CYP gene variant and people with peripheral vascular disease and did not impact all classes of Plavix patients. Accordingly, the Court denied the motion for leave to file an amended complaint. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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