Travelers Indemnity Co. has asked a federal judge not to dismiss its $47 million lawsuit filed against Pfizer Inc., contending that the claim is not time-barred. The suit involves the epilepsy drug Neurontin and the drugmaker’s alleged anti-competitive efforts and aggressive marketing of off-label uses. Travelers, the St. Paul Fire and Marine Insurance Co., and the Standard Fire Insurance Co. alleged in their complaint that because of Pfizer’s deceptive marketing to physicians, the insurers have overpaid millions in connection with workers’ compensation claims arising from injuries caused by uses for which the U.S. Food and Drug Administration (FDA) had not approved Neurontin.
Pfizer, in a motion for judgment on the pleadings, claimed that the insurers’ claims are substantively identical to multiple lawsuits that have been consolidated in a Massachusetts multidistrict litigation (MDL), and are time-barred. Pfizer said in a statement:
Travelers, one of the nation’s largest and most sophisticated insurance companies, chose to wait until 2012 to bring suit over allegedly improper marketing and promotion of the medication Neurontin (gabapentin), which it affirmatively alleges began ‘as early as 1990.’
It should be noted that neither Travelers’ marketing, nor its antitrust allegations, are new. Travelers’ marketing allegations are similar to off-label marketing allegations first made in a 1996 qui tam lawsuit, which was unsealed on Dec. 21, 1999. Pfizer said that by 2004, numerous insurers, union health insurance funds, and workers’ compensation providers had brought similar suits, alleging that Pfizer engaged in the illegal promotion and sale of the drug Neurontin for off-label use. These cases were ultimately consolidated in a multidistrict litigation. Pfizer said Travelers’ misrepresentation, consumer protection, and unjust enrichment claims are all barred by Connecticut’s three-year statute of limitations. Travelers said in its memorandum filed in opposition to Pfizer’s motion:
First, the plaintiffs’ claims are not time-barred because the defendants’ admittedly fraudulent marketing of Neurontin from 1996 to at least 2004 constitutes a continuing course of conduct that tolled the applicable statutes of limitations.
The insurers said that the pendency of the request for class certification in the Massachusetts marketing MDL, which was initiated in May 2004, and is yet to be decided, tolled the applicable statute of limitations under the Supreme Court’s 1974 decision in American Pipe & Construction Co. v. Utah. In that case the high court ruled that the pendency of a class action tolls the statute of limitations for all potential class members until a final decision on the request for class certification. The insurers contended:
In this case, there is not a final decision — with respect to third-party payors, such as the plaintiffs — because the First Circuit reversed the denial of class certification.
Travelers is also taking the position that Pfizer is attempting to do something it cannot do at this stage. The insurers claim it’s too early to decide whether the causes of action are time-barred because there are substantial, unresolved questions of fact relevant to whether Connecticut law governs some, or all, of their claims; Pfizer’s continuing course of conduct; and tolling under the American Pipe doctrine.
The insurers said that although the parties are not close to completing discovery, Pfizer would have the court decide that Connecticut law governs their claims, even though there are unresolved facts to be developed through discovery that may establish a more significant relationship with other states and thus require the application of the law of those states to some, or all, of the insurers’ claims. Neurontin is approved by the FDA to treat seizures and, as of 2004, chronic debilitating pain caused by shingles, according to the suit. But Pfizer markets Neurontin to treat injuries like back strains, bone fractures, carpal tunnel syndrome, sprains, dislocations, contusions, punctured lungs, slipped disks and hernias, according to Travelers’ suit.
Travelers also accused Pfizer of failing to advise health care professionals and the public of serious side effects associated with the drug, including suicidal behavior, paranoia, memory loss, hostility, depression, drowsiness and nausea.
Sources: Juan Carlos Rodriguez and Law360.com
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