An attorney for AstraZeneca Pharmaceuticals told Delaware Supreme Court justices on Wednesday they have no reason to resurrect a 12-year-old class action in which six unions accused the company of consumer fraud for promotions that drove doctors to prescribe the heartburn medicine Nexium instead of cheaper over-the-counter drugs.
AstraZeneca attorney Michael P. Kelly of McCarter & English LLP said the Teamster Local health care funds behind the suit failed to connect their drug expenses to AstraZeneca advertising that the unions said generated more patient prescriptions for higher-cost Nexium instead of an allegedly equivalent but less-costly over-the-counter product, Prilosec, or its generic.
“Under any state law, this case fails because there’s no allegation that the third-party payers ever saw an ad that influenced their decision,” Kelly said. “It obviously didn’t influence their decisions, since 2004 they’ve still kept the medicine on their formulary” of reimbursable medicines.
The Teamsters originally sued in Delaware in 2004, seeking damages for drug plan payments in 15 states, but put their case aside pending the outcome of a related federal court action, dismissed in 2010.
Kelly said the Teamster case made no direct connection between advertisements and union drug plan decisions to include Nexium among reimbursable medications.
“You can’t have damages under Delaware law unless you can prove that damages were flowing from the conduct,” Kelly said.
AstraZeneca Pharmaceuticals LP is represented by Michael P. Kelly and Daniel M. Silver of McCarter & English LLP.