An Oklahoma federal judge won’t let EISAI Inc. and Arena Pharmaceuticals Inc. trim most claims from a suit alleging the weight loss drug Belviq caused a woman to develop breast cancer, saying the complaint sufficiently alleges they were aware of the drug’s risks but pushed it to market anyway.
U.S. District Judge Scott L. Palk denied most of a pair of motions by EISAI in a suit by Pamela Puskas, only dismissing her claim for fraudulent concealment as it is not a separate cause of action under Oklahoma law, saying while she can argue that such concealment tolls her claims, it need not be pled in the complaint.
Puskas’ suit is one of several that the Judicial Panel on Multidistrict Litigation was asked to consolidate in July, alleging that the recalled diet drug Belviq caused various types of cancer. The JPML denied consolidation in August.
Puskas was first prescribed Belviq for weight loss in August 2018, and developed breast cancer in September of that year. She alleges that the companies had known that the drug caused cancer for years, but sold it anyway. In January 2020, the U.S. Food and Drug Administration issued a safety notice for the drug, and EISAI withdrew it from the market a month later.
Judge Palk said the rest of the complaint makes it clear that Puskas’ allegations are not conclusory, as she points to studies that the companies conducted that indicated that the drugs could cause tumors in rats.
As to the implied warranty claim, the complaint contains allegations that not only was Belviq responsible for her cancer, but that it had little to no actual weight loss benefits, which would make it unfit for its purpose.
And the same allegations that support the express warranty and negligence claims also support the claims for fraudulent and negligent misrepresentation, Judge Palk wrote.