Tag Archives: Learned Intermediary Doctrine

NuvaRing Court Dismisses Bellwether Trials On Summary Judgment For No Good Reason

  [Update, July 15, 2013: The Federal MDL court reached the opposite conclusion, denying summary judgment on liability and causation and on punitive damages. Those cases will now proceed to trial.]   In case you missed it, last week I had a guest post up at TortsProf lamenting how recent changes in civil procedure law have created a situation in which judges are frequently deciding complex cases by improperly deciding for themselves what the true facts were, in advance of a jury trial, and sometimes on nothing but the initial complaint.   Unfortunately, we just had another example: the recent order ... Continue Reading

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The Product Liability Expert Who Wasn’t There

Product liability claims are doubly challenging for plaintiffs' lawyers. First, product liability law is in a state of flux (with the trend going against injured consumers). Second, product liability cases are notoriously time-consuming and expensive to pursue: in addition to all the ordinary expenses and burdens of personal injury litigation, product cases usually require hiring a bevy of experts who then have to spend hundreds of hours examining the products and preparing their reports. It's not unusual for lawyers to spend over one hundred thousand dollars on a product liability case in out-of-pocket expenses alone (not including lost attorneys fees), ... Continue Reading

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The Learned Intermediary Doctrine And Dollars For Docs

Have you ever seen a commercial on TV, or heard a commercial on the radio, or read an advertisement in a magazine, or saw a commercial on a website, for a prescription drug? Of course you have, if you're in the United States (or New Zealand — the rest of the modern world bans the practice). You see them all the time. Why? Because, as io9 profiled extensively, "For every dollar spent on ads for drugs, over four dollars in retail sales are garnered. A May 2011 study showed that new drugs that feature direct-to-consumer advertising are prescribed nine times more than their new counterparts ... Continue Reading

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The Most Unfair Prescription Drug And Medical Device Opinions Of 2011

A few days ago I reviewed the list of "worst" pharmaceutical and medical device liability court opinions of the last year as chosen by the defense lawyers at Drug & Device Law, so I feel obligated to follow-up on their post on the "best" prescription drug and medical device decisions. The short version is quite simple: drug and device companies really like activist judges legislating from the bench or overruling juries' factual findings. How else to explain the love for PLIVA, Inc. v. Mensing, in which the United States Supreme Court couldn't find a federal statute or regulation in support of ... Continue Reading

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Off Label Drug Use Should Be Regulated For Patient Safety

[Update: the American Medical Association recently posted an article about how "off-label" marketing is so pervasive that many doctors don't even know what the approved purposes of the prescription drugs and medical devices are, exposing them to malpractice liability.] The pharmaceutical defense lawyers at Drug & Device Law, one of my favorite blogs to throw rocks at (we went Jersey Shore over the Wellbutrin litigation a year ago), are at it again, this time attacking a legal theory they refer to as ‘FDA regulatory informed consent.’ Although drug companies aren’t allowed to market drugs for any purpose other than those ... Continue Reading

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Propaganda in the Courtroom: Pharma Edition

At Day on Torts: This study in PLoS Medicine reports that, based on estimates from publicly available data, drug manufacturers probably spend more money on advertising than they do for research and development. In the words of the study:   "From this new estimate, it appears that pharmaceutical companies spend almost twice as much on promotion as they do on R&D. These numbers clearly show how promotion predominates over R&D in the pharmaceutical industry, contrary to the industry's claim. While the amount spent on promotion is not in itself a confirmation of Kefauver's depiction of the pharmaceutical industry, it confirms the ... Continue Reading

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