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In re Zyprexa Products Liability Litigation

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Argued: December 8, 2009

Before: KATZMANN, LIVINGSTON, and LYNCH, Circuit Judges.

Plaintiffs-appellees (“plaintiffs”), unions and insurers who act as third-party payors (“TPPs”) who underwrite the purchase of prescription drugs by their members or insureds, brought this putative class action against Eli Lilly and Company (“Lilly”), manufacturer of the drug Zyprexa, alleging that Lilly had misrepresented Zyprexa’s efficacy and side effects to physicians. The putative class is composed of TPPs, such as insurance providers, that paid for Zyprexa prescriptions. Plaintiffs argued that class members were injured in two ways: first, by paying for Zyprexa prescriptions that would not have been issued but for the alleged misrepresentations; and second, by paying a higher price for Zyprexa than would have been charged absent the alleged misrepresentations. The district court certified a class of TPPs under the second theory. This appeal followed.

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