If you’re hurt by a pharmaceutical, you can sue the company that made the drug, and be compensated for your losses, right? Most people assume that is the way the justice system works, but the reality is that it’s difficult, and in many cases impossible, for victims of pharmaceutical companies (and other big corporations/industries) to gain compensation or justice.
There are many aspects of the current U.S. legal system that make getting compensation and justice for injuries caused by pharmaceutical drugs difficult, and there are two bills that are currently going through the U.S. House of Representatives (H.R. 985, the 2017 Fairness in Class Action Litigation Act and H.R. 1215, the Protecting Access to Care Act of 2017) that will make justice for victims of pharmaceuticals nearly impossible.
They Can Hurt You as Long as You Were Warned
Currently, people who are hurt by pharmaceuticals are in a legal catch-22 because victims of pharmaceuticals can’t sue drug companies for hurting them, they can only sue for failure to warn. So, if a pharmaceutical drug gives you cancer, you can’t sue the company that made the drug for the fact that it gave you cancer, you can only sue them for failing to warn you IF the warning label doesn’t contain information about the drug causing cancer. If the warning label says that the drug can cause cancer, you can’t sue, because “you were warned.” Even if you were never given the drug warning label, you “were warned” as far as the justice system is concerned — because the learned intermediary doctrine states that pharmaceutical manufacturers aren’t obligated to inform you, the consumer/patient/victim, they’re only obligated to inform the doctor, the “learned intermediary,” about the potential harm that the drug can cause.
If a pharmaceutical drug causes your cancer, but that isn’t noted on the pharmaceutical warning label, you’re not much better off, because proving that a pharmaceutical caused your cancer is near-impossible for a regular person. The only situation in which a person can sue a pharmaceutical drug company for the harm done by their products is when a drug warning label changes. If a pharmaceutical drug warning label changes, there is enough evidence that the drug did the harm, but people who took the drug prior to the warning label change weren’t properly warned, so there is a short window of opportunity for victims to sue and gain recourse/justice for the harm done to them. The inherently dangerous nature of pharmaceutical drugs, the warning labels that accompany them, and the way our justice system is structured, make it so that the vast majority of those who suffer harm from pharmaceutical drugs are unable to sue the maker of the drug(s) that hurt them.
Victims of Generic Pharmaceuticals Can’t Sue
On top of that, victims of generic pharmaceuticals are completely unable to sue the manufacturer of the pharmaceutical drug that hurt them. This is an absurd situation that is an extreme miscarriage of justice. You can read more about the inability of victims to sue makers of generic pharmaceuticals in the New York Times article “In 5-4 Ruling, Justices Say Generic Makers Are Not Liable for Design of Drugs” and the posts on HormonesMatter.com, “SCOTUS Decision on Medication Safety: No Product Liability” and “Hurt by a Generic Drug? Victims have no Recourse unless the FDA Changes Rules.” Basically, if you are hurt by a generic drug, you have no recourse because cannot sue a generic drug manufacturer. The FDA has the power to change this situation, but they have failed to do so over the 3+ years that they have been deliberating how they might address it.
A poignant example of how this horrible rule can keep people from gaining justice is the tragic death of Chris Dannelly. Chris Dannelly was killed by generic Levaquin — levofloxacin — and neither his widow nor his children can sue the maker of the generic levofloxacin that killed him. Here is a newscast about Chris Dannelly’s death from levofloxacin:
Justice for the Rich
Justice is supposed to be blind, but your chances of getting compensated for your losses are significantly higher if you are wealthy. It is difficult to get a lawyer to take your medical harm case if the damages that you may be compensated for are less than a million dollars. According to the ProPublica article “Patient Harm: When An Attorney Won’t Take Your Case”:
But lawyers may have to invest $50,000 or more to pursue a case, and they usually only get paid if they win or settle. The payout is determined largely by economic damages – lost earnings, medical bills and future costs caused by the injury. Those who don’t earn big paychecks – including children, the elderly and stay-at-home-moms – are the least likely to find an attorney, studies show.
If you can’t show that you suffered from millions of dollars in lost wages, and other damages, lawyers won’t take your case because it doesn’t make economic sense for them to do so. And, if you can’t find a lawyer to take your case, you cannot get justice.
In order to increase the potential payout of a lawsuit, to make it worth the upfront investment of a lawyers’ time, money, and effort, plaintiffs are lumped together in class-action lawsuits. Class-action lawsuits aren’t ideal, but they’re the only form of justice that most victims of pharmaceutical companies have, and, frankly, they’re better than nothing. Class-action lawsuits are often the only way that victims of pharmaceutical drugs can gain justice, and class-action lawsuits are currently under attack by the U.S. Congress.
H.R. 985 – Making Justice Even More Difficult for Victims
H.R. 985, the 2017 Fairness in Class Action Litigation Act, aims to put more obstacles in the way of plaintiffs/victims who seek justice. This justice-reform bill is a gift to the pharmaceutical industry, and other big corporations that hurt citizens (like big banks, big agriculture, big chemical, big oil etc.) from Congress men and women who receive millions of dollars in donations from those industries.
One of the most potentially damaging aspects of H.R. 985 is a provision that states that each plaintiff in a class-action lawsuit must “affirmatively demonstrate” that they “suffered the same type and scope of injury as the named class representative.” This means that all plaintiffs in a class-action lawsuit must have exactly the same injury. This provision will keep a large number of pharmaceutical class-action lawsuits from moving forward, and will rob the people who could otherwise be involved in a class-action lawsuit of justice.
Here is an example of how this provision in H.R. 985 could hurt people: The warning labels for fluoroquinolone antibiotics, including Cipro, Levaquin, and Avelox, have recently been updated to note that permanent peripheral neuropathy is a potential effect of those drugs. This opened the door to lawsuits, and many law firms are taking cases for those suffering from peripheral neuropathy caused by fluoroquinolones. Peripheral neuropathy is a broad diagnosis though, and it presents in many different ways. Some people with peripheral neuropathy may have pain that is debilitating, while others may have twitching muscles, others may experience numbness, others may have reduced balance or coordination, and others may have autonomic nervous system dysfunction that causes loss of digestive motility. H.R. 985 could make it so that those plaintiffs cannot join together in a class-action lawsuit because their symptoms present differently, and, as noted above, without the possibility of a class-action lawsuit, there is no possibility for justice for many victims of pharmaceutical industry crimes.
In “House Judiciary Committee Passes H.R. 985: Fairness in Class Action Litigation” the following example is given to illustrate how this provision could hurt those trying to sue a bank: “So if your bank steals a $5 overdraft fee, and $10 from your neighbor, a class action could be dismissed because your injuries were different. Even if you file a lawsuit and get your $5 back, your friend would not.”
This provision of H.B. 985 would keep cases like that of the people of Hinkley, California versus Pacific Gas & Electric (PG&E), that was featured in the movie Erin Brockovich, from moving forward. The people of Hinkley “suffered cancers, mis carriages and digestive and skin disorders as a result of the company (PG&E) dumping contaminated waste into ponds that seeped into the town’s drinking water.” If they weren’t allowed to join together in a class-action lawsuit because they didn’t have the “same type and scope of injury as the named class representative,” they wouldn’t be able to gain justice.
When people are exposed to endocrine disrupting chemicals (whether those be industrial pollutants, pharmaceuticals, pesticides, herbicides, etc.), the health maladies that result vary from person to person. Some people may suffer from infertility, while others get cancer, and others develop an autoimmune disease. (For more information about the health effects of endocrine disrupting chemicals, read Our Stolen Future: Are We Threatening Our Fertility, Intelligence, and Survival?–A Scientific Detective Story by Theo Colborn, Dianne Dumanoski, and John Peterson Myers.) The people in the industries producing endocrine-disrupting pollutants know this, and they lobby accordingly — hence this provision in H.B. 985.
If H.B. 985 passes into law with the provision that all plaintiffs must “affirmatively demonstrate” that they “suffered the same type and scope of injury as the named class representative,” bulldog lawyers hired by big pharma, big ag, big chemical, big oil, and other profit-at-all-cost motivated corporations, will tear apart all attempts of plaintiffs/citizens/victims to join together to fight for justice.
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