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Plaintiffs filed more than 350 products liability cases last month in Delaware state court against AstraZeneca Pharmaceuticals L.P. over the anti-psychotic drug Seroquel � a surge exceeding the total number cases filed there in the last two years. Plaintiffs’ lawyers contend that there is nothing behind the spike in filings. They point out that Delaware is Wilmington-based AstraZeneca’s home state and that the cases would have been filed eventually anyway. But a defense observer expects that plaintiffs’ counsel may be trying to force AstraZeneca into an early settlement of the Delaware cases that would influence the settlement of the rest of the litigation � and avoid the federal multidistrict litigation (MDL) in Tampa, Fla. � because Delaware is on a fast track for trial and discovery. The litigation arose from a label change ordered by the U.S. Food and Drug Administration in September 2003, indicating that Seroquel users are at heightened risk of contracting diabetes. No link has been proven, but plaintiffs who took the drug before that date have claimed injury and say they were not adequately warned of this risk. ‘Toe to toe’ Michael P. Kelly, the managing partner of Newark, N.J.-based McCarter & English’s Wilmington office, who leads AstraZeneca’s Seroquel defense team in Delaware state court, said that the company does not plan to settle the cases. “In boxing terms, we will go toe to toe � no ‘rope a dope’ here. We stand behind Seroquel, which is a great product that has helped a lot of people,” said Kelly. But Paul J. Pennock of Weitz & Luxenberg in New York, co-lead plaintiffs’ counsel in the federal Seroquel MDL, lead counsel in New Jersey and also involved in the Delaware litigation, called AstraZeneca’s “scorched earth” approach “foolish.” “We’re going to take scorched earth back at them,” Pennock said. Other key plaintiffs’ attorneys in the litigation are K. Camp Bailey of Bailey Perrin Bailey in Houston; Lawrence J. Gornick of Levin Simes Kaiser & Gornick in San Francisco; and Kenneth W. Smith of Aylstock, Witkin & Sasser in Pensacola, Fla. Pennock noted that Eli Lilly & Co. of Indianapolis settled litigation over Zyprexa, an anti-psychotic drug of the same class as Seroquel. Lilly agreed to pay more than $1 billion to settle 28,500 state and federal claims against it in a series of settlements that deny liability, according to the company’s Web site. Like Seroquel, Zyprexa has an MDL. A number of Zyprexa cases are still pending trial in a federal MDL in the Eastern District of New York and in several state courts. In re Zyprexa Products Liability Litigation, MDL 1596 (E.D.N.Y.). The drug class is combined for administrative purposes in consolidated actions in Delaware and New Jersey, and there are actions in several other state courts. Pennock said that not settling the Seroquel cases could end up costing AstraZeneca $10 billion. He added that this is just the beginning of a litigation that he thinks is going to be bigger than Zyprexa. If the surge in Delaware is part of a strategy, its aim is to spread out large numbers of cases to give plaintiffs “as many different pressure points on AstraZeneca as we can obtain,” he said. He said further that he anticipates a large number of cases to be filed in California and New York state courts. Kelly said that he expects discovery in the Delaware litigation to follow the federal MDL, In re Seroquel Products Liability Litigation, MDL 1769, in the Middle District of Florida in Orlando � where the court said that it wants to remand its cases for trial by September 2008. The Delaware court has scheduled a trial conference for November 2008 with an eye to setting the initial group of cases for trial within six months � that is, up to May 2009, Kelly said. Pennock said that the first of what is only a handful of Missouri Seroquel cases are likely to go to trial in the fall of 2008. Seroquel and Zyprexa are two of a class of six so-called atypical anti-psychotic drugs on the market prescribed to treat schizophrenia and other psychotic disorders. Risperdal, made by Janssen Pharmaceutica Inc. of Titusville, N.J. is also the target of mass litigation. As of May 1, there were almost 7,100 Seroquel cases in the federal MDL and 648 cases in Delaware state court. New Jersey reported a total 1,674 atypical anti-psychotic drug cases, many of which contain multiple defendants, in which there are 1,291 claims against AstraZeneca, 570 claims against Janssen and 228 claims against Lilly. Clozaril, made by Novartis Pharmaceuticals Corp. of East Hanover, N.J.; Geodon, made by Pfizer Inc.; and Abilify, made by Bristol-Myers Squibb Co., and Otsuka America Pharmaceutical Inc. of Rockville, Md., are also the subjects of litigation, but not yet federal multidistrict litigation.

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