Veterans lawsuit against makers of antimalarial drug gets new life on appeal

Four former service members who say they suffered a range of symptoms after taking an antimalarial drug while serving in the military can proceed in suing the companies that manufactured and distributed the product, an appellate court decided.

Andrea Caston, Richard Githens, Patrick Wagher and Kendrick Allen filed the original lawsuit in 2023 on behalf of themselves and all service members who were severely sickened by side effects of mefloquine.

The plaintiffs took mefloquine pills before and during overseas deployments to Africa and Afghanistan in the late 1990s and early 2000s, according to court papers. They served in the Army, the Army National Guard and the Navy.

They later exhibited symptoms such as pain, sleep disturbances, skin disorders, suicidal thoughts, depression, fatigue and cognitive decline, which have persisted beyond their military careers.

The 9th U.S. Circuit Court of Appeals on Tuesday partially reversed a 2024 ruling by U.S. District Judge Trina Thompson in California, who had dismissed the complaint with prejudice, meaning it couldn’t be refiled.

The lawsuit accuses Roche and Genentech of using the “prospect of wartime profits” to provide mefloquine to the U.S. military despite knowing that it “causes significant and irreversible neuropsychiatric harms.”

It also refers to what it calls “mefloquine toxicity” as “the modern-day version of Agent Orange in scope and scale.”

In the Tuesday ruling, a three-judge panel of the 9th Circuit determined that a legal consideration known as the political question doctrine does not bar the suit against Genentech, a San Francisco-based biotechnology company that distributed mefloquine under the trade name Lariam to U.S. military bases.

The doctrine is applied by courts seeking how to avoid issues better handled by Congress or the president.

Thompson had ruled that it would be inappropriate for the court to second-guess federal regulators who had approved the drug. She also tossed out a similar suit against Roche in 2022.

On Tuesday, the 9th Circuit affirmed the dismissal of the case against Roche affiliates, which previously provided the drug to bases before merging with Genentech in 2009.

But the appellate judges said Thompson had erred in dismissing the claims against Genentech with prejudice, and they sent the case back for review.

“We look forward to returning to the trial court to prosecute the veterans’ claims and ensure their voices are heard,” Dwayne A. Robinson, the service members’ lead appellate counsel, said in a statement Thursday.

The lawsuit seeks to force the defendants to pay for “medical monitoring,” including screening, treatment, therapy and rehabilitation for all members of the class-action suit.

The companies argued that the monitoring program was unnecessary, given that the service members had already undergone extensive treatment and screening.

But the appeals court said the veterans can amend their complaint and explain how the proposed monitoring program would benefit them.

In response to the ruling, Roche told online legal journal Law360 that the appellate court had correctly recognized an issue of whether the plaintiffs have standing to seek medical monitoring.

Army researchers developed mefloquine during the Vietnam War. Roche, a Swiss drugmaker, was granted the intellectual property rights and won FDA approval for Lariam in 1989. The drug was given to hundreds of thousands of troops sent to Afghanistan and Somalia.

In 2013, the Food and Drug Administration began requiring a warning label on mefloquine products highlighting their adverse neuropsychiatric side effects. In response, the U.S. military reclassified mefloquine as a “drug of last resort.”

The Veterans Affairs website says mefloquine is “very effective at preventing malaria” but adds that people with certain medical conditions should not take the drug. The list includes psychiatric disorders, epilepsy and certain heart conditions.