Court: Suit against KV over Hypertension Pills Can Proceed

On behalf of Brown & Crouppen, P.C. posted in Defective Medications on Thursday, February 3, 2011

A class action lawsuit against St. Louis-based KV Pharmaceutical Co. can resume after a federal court of appeals judge overturned a lower court decision that federal law prevented the suit. The suit is in connection with improperly dosed hypertension medicine manufactured by a KV subsidiary.

According to a recent article in the St. Louis Post-Dispatch, the lead plaintiff in the suit is a man who resides in Rhode Island. Along with the other plaintiffs in the suit, he purchased Metoprolol Succinate ER, a hypertension drug sold by KV, after obtaining a prescription.

In March 2009, KV’s subsidiary, Ethex Corporation, admitted in a federal consent decree that some of the Metoprolol Succinate ER pills it manufactured were oversized and contained more of the medicine than was described on the label. In the decree, Ethex said that poor quality control procedures used by the company caused the error. Ethex issued a recall of the drug and destroyed its remaining stock. The lawsuit followed in April 2009, alleging that the defective drugs caused economic harm to the plaintiffs and asking for relief under Missouri’s Merchantability Practices Act, which deals with fraudulent business practices.

The trial court held earlier in January that the Act was pre-empted in cases of defective drugs. The plaintiffs alleged that KV violated federal regulations, the court said, and therefore federal law, not state law, applied, and the plaintiffs could not sue under the Act.

The January 19 decision by the 8th Circuit U.S. Court of Appeals in St. Louis overturned that ruling. The three-judge panel held that when Congress passed the Federal Food and Drugs Act to supplement state and local health laws, not cancel them out. Also, the court reasoned, the lower court ruling would leave the plaintiffs with no way to get compensation for the money they spent on the hypertension pills.

Source: St. Louis Post-Dispatch, “Appeals court revives lawsuit against drugmaker KV,” Jim Doyle, January 20, 2011

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