As a dangerous drug attorney, I’ve written here before about the problems with the birth control pills Yaz and Yasmin, both of which use a newer formula than other birth control pills. So I was interested to see a decision from the Seventh U.S. Circuit Court of Appeals in a Yasmin case that put procedural issues at the forefront before anything could be decided on the merits. In Cathy M. Walton v. Bayer Corporation et al, Walton sued Bayer and other companies as well as Niemann Foods, the pharmacy where she purchased the drug.
Bayer first removed the case to federal court, arguing that Niemann was improperly included in the case so it could be in state court. The federal district judge seems to have agreed, dismissing Niemann as a defendant from the case. This allowed the case to stay in federal court. Walton then abandoned the entire case because the district judge refused to remand it to state court, failing to respond to a discovery request from the defendants. The district judge eventually dismissed the case, and Walton appealed to the Seventh Circuit.
That court scrutinized Walton’s arguments that there was no federal jurisdiction over the case. Judge Posner, writing for the majority, brushed off her principal claim that the district court should not have dismissed Niemann as a plaintiff (which allowed the case to stay in federal court). Because pharmacies are “learned intermediaries” in Illinois, and because Walton does not allege that the pharmacy knew she was especially susceptible to Yasmin’s side effects, dismissal was valid. Nor could Walton argue that all of the defendants had a common defense, it wrote, because she alleged different actions by them. Finally, the court suggested that her claim would fail in state court anyway because she would be estopped from making the opposite arguments in state court from the ones she made to the Seventh. Thus, the appeals court upheld the dismissal by the district court.
This case might look unfortunate for all Yasmin and Yaz claims, but Walton’s case made stumbles that our experienced defective drug lawyers would not make. Most importantly, Walton made failure to warn claims against the pharmacy and several Bayer-affiliated distributors, but not against the arm of Bayer that did the manufacturing. This matters because it’s manufacturers who have a legal obligation, under all states’ laws, to warn defendants about safety risks of their products. In fact, Bayer has been in trouble for failing to do this in past television advertising, and it currently faces numerous lawsuits for failure to warn individuals of the risk of blood clots from drospirenone (the active ingredient in Yaz and Yasmin). As a pharmaceutical liability attorney, I hope Walton and others who have been harmed by drospirenone can pursue their claims successfully by choosing the right courts (and counsel).
If you believe you’ve been hurt, sickened or lost a loved one because of a defect in a prescription drug that you were never warned about, you should call Carey, Danis & Lowe to find out how we can help. For a free, confidential evaluation of your case, send us a message through our website or call toll-free at 1-877-678-3400 today.
Similar blog posts:
Drug Watchdog Urging Yaz Victims to Contact Them
FDA Announces Safety Review of Yaz and Yasmin After Studies Show Blood Clot Risk
Another Yaz Lawsuit Filed by Mother of College Freshman Who Died of Blood Clot
