With the ever increasing number of new prescription drugs on the U.S. market every year, and the associated waves of marketing by their pharmaceutical companies promoting them on television, magazines, and other media, it is difficult for the F.D.A. to keep up with the monitoring and regulating all the new drugs. When consumers suffer adverse side effects following the use of unsafe drugs that are the result of defective design, manufacturing, distribution, inadequate warning labels, or some other reason, the applicable laws often hold these parties responsible for any injury caused by the defective products.
Four Legal Theories: There are generally four different legal theories for holding the defendants liable in the case of a defective or dangerous drug injuring a consumer: negligence, breach of warranty, misrepresentation, or strict liability.
Negligence: In negligence cases, in order to prevail, Plaintiff has to show the defendant failed to exercise proper, ordinary, or reasonable care. In the case of a dangerous drug manufacturer, your lawyer has to show that the manufacturer lacked reasonable care in producing, designing, distributing, or marketing a dangerous drug, and that such negligence caused the harm. An example of this would be if the manufacturer’s employees failed to monitor the ingredients used in the drug making process, such that an incorrect and highly lethal ingredient was placed into a batch of drugs, causing severe injury or death to those who consumed the batch of drugs.
Breach of Warranty: Under this theory, the claim is based on the failure of the drug’s seller, distributor, or marketer to fulfill a promise made either expressly or implicitly concerning the safety and quality of the product being sold, in this case, the drug. The law imposes responsibility on these various entities to stand behind their product and be responsible to compensate a victim if the injury was caused by their defective drug.
Misrepresentation: This legal theory addresses the advertising and sales promotion of the drug, and is based upon the idea that the drug manufacturer may have misled the public, exaggerating the benefits, and minimizing the negative side effects of a drug. Accordingly, the consumer listening to a flood of uplifting, optimistic commercials of smiling actors enjoying their miracle drugs, without any mention of the dangerous side effects, may give rise to misrepresentation claims in that the pubic is given a false sense of safety about the drug. Plaintiff’s lawyer must show the Plaintiff relied upon the misrepresentation and was harmed by it. A common example is when the drug manufacturer is alleged to have intentionally concealed harmful side effects, continuing to promote a drug as having no known dangerous side effects, when, in fact, undisclosed clinical trials had already revealed seriously adverse side effects.
Strict Liability: This legal theory arose to provide a greater level of protection to the consumer by extending the responsibility of the manufacturer or vendor of the dangerous drug to all individuals who might be injured by it, even in the absence of fault. This is designed to remedy the unfair results that occurred when injury victims had to prove negligence or breach of warranty theories in order to prevail. However, strict liability does not mean that your can automatically recover if you are injured by a drug. Your lawyer still must show that the drug was defective when it was put on the market, that the defect rendered the drug unreasonably dangerous to the user; that the defect was a cause of the injuries, and that the drug was expected to and did reach the consumer without substantial change in its condition.
Every year, thousands of people are killed by dangerous drugs that should never have been made available to the public, as they posed too great a risk to the public given their potential for having severe or fatal side effects. If you or someone you love has been killed or injured using a drug, our team of drug recall lawyers will investigate the particulars of your case to determine the details of your particular case and injuries. In most cases, our team of drug recall attorneys have extensive knowledge of the adverse side effects related to a recalled or restricted drug, thus they can provide an evaluation of your case.
Depending on the circumstance of your particular case, and on the applicable laws, you or your family members may be entitled to financial compensation from the drug manufacturer, distributor or others, for the injuries you have suffered as a result of the drug. This can include past and future medical expenses, lost wages, pain and suffering, and in some cases, punitive damages, meant to inflict economic pain on the company at fault.