A Chicago federal judge has ruled a suburban woman must describe, in her lawsuit against global drug maker Johnson & Johnson, how the company allegedly lied about possible effects of its antibiotic Levaquin, which the woman said caused her to develop a number of ailments.
The May 31 decision was issued by U.S. District Judge Gary Feinerman concerning a suit brought by married couple Lisa and Donald Ringelestein, against Janssen Pharmaceuticals and its parent company, Johnson & Johnson.
Johnson & Johnson is headquartered in New Brunswick, N.J., and Janssen is based in Beerse, Belgium. They make the antibiotic Levaquin.
The Ringelesteins, who live in suburban Kendall County, sued the drug companies in May 2016, saying Lisa used Levaquin in June 2010 and April 2013. After consuming the drug, Lisa alleged she started suffering from a multitude of ailments, including chronic pain, fatigue, burning sensations, impaired mental status and loss of coordination.
Lisa went through several orthopedic surgeries in 2012 and 2013, before she was diagnosed with “multiple tendon ruptures likely secondary to Levaquin,” as well as chronic pain and “mitochondrial impairment/fluoroquinolone toxicity,” the suit said. Lisa continues to experience these maladies, according to court papers.
The Ringelesteins alleged defendants knew Levaquin could cause these problems, but hid that information from the public in its marketing and labeling. The Ringelestein’s suit invokes negligence, strict liability, breach of warranty, loss of consortium, fraud and fraudulent concealment.
Defendants lodged a motion to dismiss the fraud and fraudulent concealment counts.
Judge Feinerman agreed to toss the fraud claim, noting the Ringelesteins stated defendants made “misleading” representations about Levaquin, but failed to explain how those representations were misleading. Feinerman further pointed out the Ringelesteins made “passing references” to Levaquin’s labeling and package inserts, but did not “specify their content” or include them as exhibits to the suit.
Feinerman threw out the fraud count, but said plaintiffs could rework this allegation and file an amended fraud claim by June 21.
Regarding the fraudulent concealment claim, defendants maintained they were not obligated to disclose safety information about Levaquin. Feinerman made short shrift of this argument.
“Common sense suggests that pharmaceutical companies are in a ‘position of superiority’ over patients who use their drugs. After all, the companies are well‑positioned to understand the potential side effects of their drugs in a way their lay patients are not. Under Illinois law, a pharmaceutical company has a duty to disclose known risks of its drugs to patients and their physicians,” Feinerman observed.
The judge noted drug manufacturers are able to rely in some cases on the “learned intermediary” principle, which provides it is enough to adequately warn a prescribing physician of a drug’s risks, without also warning the patient.
Feinerman pointed out defendants have not raised this defense, but even if they had, its application would be questionable in this suit, because defendants’ marketing materials were directed not only to physicians, but to the public, as well.
Feinerman refused to dismiss the fraudulent concealment claim.
The next hearing is June 21.
The Ringelestein couple are represented by the Law Office of Martin L. Glink, of suburban Arlington Heights.
Johnson & Johnson and Janssen Pharmaceuticals are defended by the Chicago firm of Drinker, Biddle & Reath.