AstraZeneca, Merck Nexium Claims Should Advance, Judge Says

AstraZeneca Pharmaceuticals LP and Merck Sharp & Dohme Corp. should continue to face claims that they didn’t properly warn an Ohio man’s doctors about the risk of chronic kidney disease posed by their heartburn drug Nexium, but other claims should be cut, a federal judge in New Jersey said.

James Rieder’s case is set for trial in November and would be the first one in multidistrict litigation over Nexium and similar drugs known as proton-pump inhibitors. The suits were combined in 2017 in the US District Court for the District of New Jersey. Some 13,000 cases are pending.

Ohio law, which governs Rieder’s case, presumes that a physician would have heeded a warning had one been given.

AstraZeneca and Merck failed to overcome that presumption, Special Master Ellen Reisman said Tuesday in a report and recommendation to Judge Claire C. Cecchi.

The drugmakers needed to demonstrate that none of the three physicians who prescribed Nexium to Rieder would have changed their care of him if given a different warning, the court said.

One of Rieder’s three prescribing physicians is deceased and wasn’t able to be deposed, but testimony from the other two didn’t unequivocally show that a warning wouldn’t have altered their management of Rieder, the court said.

For example, one doctor said that because of Rieder’s blood work indicating impaired kidney function, he would have recommended that Rieder avoid a class of pain relievers called non-steroidal anti-inflammatory drugs because of their “well-documented history of causing renal insufficiency.”

A jury could reasonably conclude that, had the doctor been warned of the risk of kidney injury from PPI use, he would have likewise advised Rieder to avoid or limit those medications, the court said.

Warranty, Misrepresentation Claims Out

But the drugmakers are entitled to judgment on Rieder’s claims that they breached an express warranty of safety, the court said.

Rieder argued that a television commercial that he said touted the benefits of Nexium with no mention of possible kidney disease, and a pharmaceutical sales representative’s statements to doctors that Nexium is safe without mentioning kidney disease, were evidence of an express warranty.

But not mentioning the risk of kidney injury isn’t an express safety representation, the court said.

Judgment is also warranted for the drugmakers on Rieder’s fraud and misrepresentation claims because they are abrogated by the Ohio Product Liability Act, which eliminated such common law claims, Riesman said.

Morgan & Morgan PA and Carey Danis & Lowe represent Rieder. McCarter & English LLP, Arnold & Porter Kaye Scholer LLP, Akin Gump Strauss Hauer & Feld LLP, and Morgan Lewis & Bockius LLP represent AstraZeneca and Merck.

The case is Rieder v. AstraZeneca Pharm., LP, D.N.J., No. 2:19-cv-00850, 7/19/22.