Subsys Overdose Action to Proceed on Design Defect Theory in Ohio

CLEVELAND — An Ohio federal judge has allowed strict liability design defect claims to proceed in an Insys Subsys overdose action, ruling that they are not impliedly preempted by federal law because they allege more than off-label promotion.

However, in the Jan. 25 order, Judge James G. Carr of the U.S. District Court for the Northern District of Ohio dismissed the claims of inadequate warning, negligence and fraud, ruling they are preempted and/or subsumed by the Ohio Products Liability Act.

Michael Kelley began taking Subsys in September 2013 to treat the pain in his lower back and knee and …