Catching up on two recent news items from West End-based Cumberland Pharmaceuticals:
First, the company said an Illinois judge has ruled in its favor in a patent case related to its Acetadote product. Industry giant Mylan Labs and other companies had challenged Cumberland’s patent to a new formulation of Acetadote but the court granted the local company its patent through the summer of 2025 and issued a permanent injunction preventing other firms from marketing a generic version of Acetadote until then.
Separately, Cumberland executives have ended their relationship with Pernix Therapeutics, which had been handling parts of the supply chain, sales and promotion of Cumberland’s Omeclamox-Pak treatment for H. pylori infections and other ulcer diseases. Instead, Cumberland will now work with Gastro-Entero Logic — which helped develop Omeclamox-Pak and get regulatory approval for the treatment — and bring the drug’s promotion work in house.
The State Supreme Court vacated a Hamilton County judge's finding that the state law capping damages was unconstitutional; however, the state's highest court did not rule on the constitutionality of the law itself.
In March, Hamilton County circuit court judge W. Neil Thomas III found that the state's 2011 law capping non-economic damages at $750,000 is a violation of the guarantee to a trial by jury. His opinion called on centuries of legal precedent (delightfully including the 1166 Assize of Clarendon) and shocked lawmakers.
This week, the Supreme Court found that since the question of damages never went to the jury — the appeal of Thomas' ruling was interlocutory and occurred as the trial proceeded — then the question of constitutionality wasn't ripe.
From the opinion (citations removed):
The same may be said with respect to the issue of the constitutionality of the statutory cap on non-economic damages in this case. The statutory cap on non-economic damages will have no relevance in this case unless and until Plaintiffs obtain a verdict in excess of that cap. Under the terms of the statute, the limitation on the amount of non-economic damages is not disclosed to the jury; the cap is only applied by the trial court after a plaintiff's verdict and an award of damages subject to and in excess of the cap.
("[T]he jury should make its award as if the statutory cap does not exist, and the jury's award should be based only on its determination of the allocation of fault in the case and its determination of the type and amount of damages."). Whether the cap is implicated in this case thus remains an open question, and the issue of the constitutionality of that cap is not ripe for determination at this time.