The health care funds of six New York-based unions cannot pursue a class action accusing AstraZeneca Pharmaceuticals LP of running a deceptive marketing campaign for the heartburn drug Nexium after a Delaware state judge ruled Wednesday the unions couldn’t prove they had been injured by the campaign.
Judge Vivian L. Medinilla’s decision, handed down in Wilmington, ends a decade-long dispute over whether the health funds’ beneficiaries relied on deceptive claims by AstraZeneca to purchase Nexium instead of a cheaper over-the-counter substitute.
Medinilla said the unions offered no proof that their members were even aware of the marketing campaign or how they or their doctors came to the decision to choose Nexium.
“To plead deceptive advertising to the public, generally, is insufficient,” without specific reliance by the plaintiffs, the judge ruled.
The judge’s decision came after a lengthy discussion of whether New York or Delaware law applied to the claims, with Judge Medinilla ultimately ruling that, since the funds were based in New York, the case fell under that state’s deceptive marketing laws. The distinction was important, the judge noted, because the Delaware law doesn’t require reliance.
AstraZeneca was represented by Michael P. Kelly of McCarter & English LLP, who handled the oral argument before the court in this case involving the laws of several states.