Judge Dismisses Missouri Avandia Consumer Class-Action

Shook, Hardy & Bacon helped secure a dismissal for client GlaxoSmithKline (GSK) in the Avandia multidistrict litigation on April 16, after a Pennsylvania federal judge dismissed the case when the plaintiff failed to state an ascertainable loss.

The complaint was filed in 2012 by Staci Laurino against GSK (formerly SmithKline Beecham Corp.), alleging that GSK misrepresented Avandia’s risk of heart disease and that the drug was not any more effective than other drugs used to treat type 2 diabetes. Using the Missouri Merchandising Practices Act (MMPA), Laurino said that she and other consumers suffered ascertainable loss when purchasing the drug; she also sought to have a class of Avandia purchasers certified.

Judge Cynthia Rufe of the U.S. Court, Eastern District of Pennsylvania, said Laurino did not allege that the drug failed to control her glucose levels or that she was injured in any way.

“The absurdity is inherent in the nature of Plaintiff’s claimed loss, which is based only on the idea that Avandia is inherently worth some unspecified amount less than whatever Plaintiff might have paid for it,” Judge Rufe wrote. “The logical extension of this argument,” she continued, “is that there is some price point at which a patient would agree to take a drug, despite the risk of side effects and despite the existence of other, equally effective drugs.”

Shook Partner and Class-Action Practice Group Co-Chair James Muehlberger contributed to GSK’s successful dismissal, along with lead counsel from Pepper Hamilton in Pennsylvania.