Veteran’s Anti-malarial Lawsuit Gets Unjustly Thrown Out

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    Ever since the Gulf War over 30 years ago, Veterans have provided cautionary tales about antimalarial drugs they were handed out by the medics. Originally used in Vietnam, these drugs have had a wide variety of side effects. From people having seizures to losing control of their lunch from both ends to nightmares and extreme muscle cramps. While their usage varied from location to location during the post-9/11 conflicts in Iraq and Afghanistan, they were still incredibly prevalent.

    An Army veteran accused Roche Laboratories Inc. and Genentech Inc. of intentionally misleading the Department of Defense and the Food and Drug Administration about the dangers of mefloquine, the generic version of the drug Lariam. First brought last year, the case showed promise after successful cases in Canada and Australia for the same reasons.

    Roche, which was granted intellectual property rights and won FDA approval for Lariam in 1989, said it manufactured its last lots for U.S. distribution in 2005. Conveniently enough, those drugs expired in 2008, just a year before the company’s 2009 merger with Genentech.

    The Pentagon continued the program with generic versions of the drug, with elite units in the Army stopping their use in 2013. This followed the FDA’s black box warning after it was found to have caused permanent brain damage in rare cases. Normal side effects were dizziness, loss of balance, and ringing in the ears could also become permanent. The Army chose to replace them with drugs they felt were safer.

    John Nelson of Florida brought the suit after he became disabled following his 2005 to 2015 service. He claimed that he had never had any neuropsychiatric symptoms before taking mefloquine just before being deployed to Afghanistan.

    U.S. District Court Judge Trina Thompson ruled in San Francisco on November 28th that Nelson has sufficiently brought the allegations that the manufacturer knew about the dangers of the drug and failed to warn the US Military. However, she believed it was a stretch to hold the company to CA laws that require brand name manufacturers to be responsible for warnings on generic versions of their drugs. Roche and Genentech were only headquartered in CA for two months while Nelson took the drug overseas in 2009.

    Thompson went on to say, “It would be unfair for plaintiff to be able to bring his claims in California and, by virtue of the state’s innovator liability doctrine, he would be extended greater rights than he would be granted in his own state of residence, Florida.” She then went on to state that NJ where Nelson had been stationed, FL where he currently resides, and KY, OR, and TN where he had previously resided also don’t have similar laws that would hold the manufacturer liable.

    For what it’s worth, Roche alleged that Nelson and his lawyers were “forum shopping” and expressed his displeasure that the court found that this case was not appropriate in a CA court.

    Nelson has explained that his symptoms continued to get worse. They went from vivid, stimulating dreams that disrupted his sleep and made him anxious to having panic attacks, paranoia, insomnia, and twice tried to take his own life. He went on to seek help and was diagnosed as depressed and later as bipolar, though medications, including antipsychotics, provided no relief.

    It was at a conference in 2020 about the effects of anti-malarial drugs that Nelson suspected he may have experienced mefloquine toxicity and pursued testing that confirmed the diagnosis. His lawsuit was seeking unspecified damages for negligence, failure to warn users, and fraudulent misrepresentation, as well as other claims. The lawsuit also wanted to have the companies pay for medical monitoring of those who took the drug to understand the impacts.

    These kinds of lawsuits need to be given special latitude. Given the wide reach of their results and the number of soldiers who started these treatments in California, it should have been allowed to stand.

    Yet again, we’re failing our veterans.

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