California anti-SLAPP statute defeats drug class actions.

• Author: O'Neal, James A.

Writing in the August issue of the newsletter of the Drug, Device and Biotech Committee, James A. O'Neal and Amy R. Freestone of the Minneapolis office of Faegre & Benson, tell the story of dismissal:

Considerable publicity has been generated concerning a series of class actions commenced in 2000 involving attention deficit/hyperactivity disorder (ADHD) and the medication Ritalin[R]. Within a little more than a year, four of the five class actions have been dismissed. This note looks at one aspect of one of those dismissals, the interesting application of California's anti-SLAPP statute (Strategic Lawsuits Against Public Participation) to a Ritalin[R] class action.

In September of 2000, a group of plaintiffs' attorneys commenced an action in federal court in the Southern District of California against Novartis Pharmaceuticals Corp. and its predecessor Ciba-Geigy, as well as two non-profit corporations, the American Psychiatric Association (APA) and the support group CH.A.D.D. (CHildren and adults with Attention Deficit Disorder). They asserted various claims centered on Novartis's supposed participation with the APA in the "creation" of ADHD and the establishment of the diagnostic criteria for the conditions found in the APA's Diagnostic and Statistical Manual of Mental Disorders. This case was the third in a series of class actions brought by the same attorneys in both Texas and New Jersey.

All the defendants moved simultaneously to strike plaintiff's the claims pursuant to California's anti-SLAPP statute, which is Section 425.16 of the California Code of Civil Procedure, on the ground that the plaintiffs could not demonstrate a probability of prevailing on their claims. The defendants' successful application of the statute defeated the plaintiffs' claims and won dismissal of the case. The dismissal also was based on the plaintiffs' failure to plead a cognizable claim under Rules 9(b) and 12(b)(6) of the Federal Rules of Civil procedure, but this note will not address that issue.

Anti-SLAPP applies

The plaintiffs' claims against Novartis fell squarely within both the language and the spirit of the anti-SLAPP statute, as they arose directly from Novartis's protected speech concerning what even the plaintiffs recognized is a serious issue of public interest concerning the health of children: the diagnosis and treatment of ADHD. Both the circumstances of the California litigation and the history of the legal assault on Ritalin[R] by these...