The U.S. Food and Drug Administration has posted on its website its first quarterly report listing certain drugs that are being evaluated for potential safety issues. FDA posted the reports in accordance with Section 921 of the Food and Drug Administration Amendments Act of 2007, which, among other things, directs FDA to inform the public each quarter of new safety information or potential signals of serious risk, based on the agency’s review of adverse event reports. Specifically, FDA is to “conduct regular, bi-weekly screening of the Adverse Event Reporting System [AERS] database and post a quarterly report on the Adverse Event Reporting System Web site of any new safety information or potential signal of a serious risk identified by Adverse Event Reporting System within the last quarter.”
FDA released the first quarterly report, listing 20 drugs. The information is provided based on a review of reports in AERS. The FDA staff in the Center for Drug Evaluation and Research (CDER) and Center for Biologics Evaluation and Research (CBER) regularly examine the AERS database as part of routine safety monitoring. When a potential signal of a possible risk is identified from AERS data, it is entered as a possible safety issue into CDER’s Document Archiving, Reporting, and Regulatory Tracking System (DARRTS) or into CBER’s Therapeutics and Blood Safety Branch Safety Signal Tracking (SST) system. Potential signals of serious risks are normally based upon groups of AERS reports.
Drugs that appear on the agency’s new “Potential Signals of Serious Risks/New Safety Information,” are thus identified by FDA reviewers based on reports from the FDA’s AERS database, which contains millions of reports of adverse events submitted to FDA by drug manufacturers, health care professionals and patients. For a drug to appear on this report, an FDA reviewer will have determined there is some reason to examine a drug more closely based on either the seriousness or number of AERS reports associated with the drug. The drugs for which issues have been identified are under evaluation for the listed potential risk. Each year, FDA receives about 400,000 reports of adverse events that people experienced around the same time period in which they were taking a drug.
An adverse event report does not establish a causal relationship between the drug and a particular event. The FDA itself has warned that for any given ADE case, there is no certainty that the suspected drug caused the event. This is because physicians and consumers are encouraged to report all suspected ADEs, not just those that are known or even suspected to be caused by the drug. The adverse event may have been related to an underlying disease for which the drug was given, to other concomitant drug usage, or may have occurred by chance at the same time the suspect drug was administered. The courts have characterized ADEs as “complaints called in by product consumers without any medical controls or scientific assessment.” McClain v. Metabolife Intern., Inc., 401 F. 3d 1233, 1250 (11th Cir. 2005). Because the reporting system is not subject to scientific controls, data from it is subject to various statistical biases. It is likely that the mix of reported events does not represent an accurate sampling of those events that can occur while a person is taking any medication. Moreover, medical or media attention can stimulate reporting in a distorted manner, and known adverse reactions are more likely to be diagnosed and reported than others. See DeLuca v. Merrell Dow Pharmaceuticals, Inc., 791 F. Supp. 1042, 1050 (D. N.J. 1992), aff’d 6 F. 3d 778 (3d Cir. 1993), cert. denied, 510 U.S. 1044 (1994) (ADEs “have inherent biases as they are second-or-third hand reports, are affected by medical or mass media attention, and are subject to other distortions.”).
MassTortDefense notes, that in contrast to how plaintiff attorneys seek to use the adverse event reports, or how the media has portrayed this new list, the appearance of a drug on this list does not mean that FDA has concluded that the drug has the listed risk. It means that FDA has identified a potential safety issue, but does not mean that FDA has identified a causal relationship between the drug and the listed risk. It may be too early to know whether there is an actual safety problem, and FDA’s analysis may ultimately conclude that there is no safety problem. If after further evaluation the FDA determines that the drug is associated with the risk, it may take a variety of actions including requiring changes to the labeling of the drug, requiring development of a Risk Evaluation and Mitigation Strategy (REMS), or gathering additional data to better characterize the risk. FDA also emphasizes that the listing of a drug does not mean that FDA is suggesting that prescribers should not prescribe the drug or that patients taking the drug should stop taking the medication.
Thus, the new quarterly reports should not change the existing view of the majority of courts that adverse event reports are ordinarily too unreliable to be used as proof of causation. See McClain, 401 F. 3d at 1250; Hollander v. Sandoz Pharmaceuticals Corp., 289 F. 3d 1193, 1211 (10th Cir. 2001); cert. denied, 537 U.S. 1088 (2002) (characterizing the case reports before the court as unreliable evidence of causation); Haggerty v. Upjohn Co., 950 F.Supp. 1160, 1165 (S.D. Fla. 1996), aff’d, 158 F. 3d 588 (11th Cir. 1998); In re Accutane Products Liability Litig., 511 F. Supp.2d 1288, 1298-1303 (M.D. Fla. 2007); Benkwith v. Matrixx Initiatives, Inc., 467 F. Supp. 2d 1316, 1327 (M.D. Ala. 2006); Leathers v. Pfizer, Inc., 233 F.R.D. 687, 694 (N.D. Ga. 2006). See also Glastetter v. Novartis Pharmaceuticals Corp., 252 F. 3d 986, 990-91 (8th Cir. 2001) (“Case reports make little attempt to screen out alternative causes for a patient’s condition. They frequently lack analysis. And they often omit relevant facts about the patient’s condition.”); Dunn v. Sandoz Pharmaceutical Corp., 275 F. Supp.2d 672, 682 (M.D.N.C. 2003) (“Case reports are not scientific proof of causation.”); Caraker v. Sandoz Pharmaceuticals Corp., 172 F. Supp. 2d 1046, 1050 (S.D. Ill. 2001) (rejecting expert opinions insofar as they relied upon case reports); Nelson v. American Home Products Corp., 92 F. Supp. 2d 954, 969 (W.D. Mo. 2000) (“At most, these case reports relay a basis for scientific hypotheses; they do not demonstrate a causal link sufficient for admission to a finder of fact in court.”); DeLuca v. Merrell Dow Pharmaceuticals, Inc., 791 F. Supp. 1042, 1051 (D. N.J. 1992), aff’d, 6 F. 3d 778 (3d Cir. 1993), cert. denied, 510 U.S. 1044 (1994) (ADEs “are not of a type of data that are reasonably relied upon by experts in the fields of epidemiology and public health.”); Siharath v. Sandoz Pharmaceuticals Corp., 131 F. Supp. 2d 1347, 1359-63 (N.D. Ga. 2001); Cartwright v. Home Depot USA, Inc., 936 F. Supp. 900, 905 (M.D. Fla. 1996).