A California appellate court has ruled an unscathed plaintiff cannot "borrow" an injury from his health insurance company, to press a suit against a San Francisco area pharmaceutical company for allegedly selling unnecessarily large dosages of anti-cancer drugs.
The decision favored Genentech, Inc. in a class action brought by Andrew Williamson. Genentech is based in South San Francisco.
Williamson was treated with the drug Rituxan for his lymphoma, which is made by Genentech, according to court papers.
In 2019 in San Mateo Superior Court, Williamson sued Genentech, alleging the company violates California's unfair competition law by selling Rituxan in amounts too large for most people. Williamson said the proper dosage is based on a person's size. Williamson wanted Genentech to offer Rituxan in smaller vials and provide restitution for the costs patients incurred buying the extra unneeded Rituxan. In Williamson's case, he said he paid an insurance deductible of $231.15, with his insurer, Blue Cross and Blue Shield of Kansas City, taking care of the remaining cost.
Judge Marie Weiner dismissed the suit, agreeing with Genentech that Williamson would still have paid the same deductible even if Rituxan was available in smaller vials. As a consequence, Weiner concluded Williamson suffered no loss and thus has no standing to pursue his suit.
On appeal, Williamson argued the money Blue Cross paid qualified as a loss, giving him basis for his suit.
Justice Burns was not convinced, but tipped his hat to Williamson.
"Genentech’s alleged unfair business practice — using excessively large vials — has not injured Williamson in any way. Williamson wants to borrow an injury from somebody else to establish standing, using the collateral source rule. It is a creative argument," Burns observed.
The collateral source doctrine can be invoked so a liable party cannot avoid paying full compensation to a victim, on grounds the victim's injury was covered by insurance, according to court documents.
"The collateral source rule has no application here. Williamson cites no cases in which the rule applied to a plaintiff who suffered no injury," Burns determined.
Burns pointed out a major flaw in Williamson's argument.
"He overlooks the fact that people with insurance, like Williamson, are not injured, and people without insurance are injured. And although it is prudent and socially valuable to buy insurance to cover the risk of personal injuries, we cannot say the same about buying insurance simply to participate in lawsuits," Burns said.
Despite the ruling against Williamson, Burns cautioned that Genentech is not out of the woods.
"Our holding does not mean a windfall for Genentech or that no one has standing to challenge its practices. We simply hold that a plaintiff like Williamson, who lacks standing because he was not injured, cannot invoke the collateral source rule," Burns said.
Williamson has been represented by Mike Arias, Robert M. Partain and M. Anthony Jenkins, of Arias Sanguinetti Wang & Torrijos, of Los Angeles.
Genentech has been defended by M. Kevin Underhill, of Shook, Hardy & Bacon, which is headquartered in Chicago.