Orlando Injury Lawyers Value Failure to Warn Claims
My recent blog regarding a Texas judge’s ruling in a Vioxx case has stimulated further thought on the effectiveness of the “failure to warn” claim in drug product liability cases. As I shared, Texas may eliminate drug injured plaintiffs’ failure to warn claims in about 900 Vioxx cases if Merck & Co. complied with the FDA’s minimum requirements.
The purpose of this post is not to re-visit that announcement but to expand upon the value of the failure to warn case in drug litigation and the resulting hardship to injured consumers if federal preemption applies. Unlike manufacturing defect and design defect claims, failure-to-warn claims are available and can be proven. These claims provide many opportunities for a jury to consider whether consumers are entitled to more information about dangerous drug side effects.
For example, if the side effect your client suffered was not specifically included in the warnings should it have been? If the drug maker mentions the side effect your client suffered, was the warning clear and effective. Where did the drug maker put the warning- in the section marked "warnings" or "contraindications" on the labeling, or in the section marked "precautions." A jury can appropriately consider whether the warning should have been in a “black box.”
Of course, you should consider whether the manufacturer should have sent a "dear doctor" letter to all physicians telling them about the risk. Perhaps your particular client’s use of the drug creates some issues of adequate and fair warnings. Did your client require or receive a high dose or use the drug for an extended period? Did such circumstances lead to foreseeable injury that should have been identified as part of the labeling?
As you can see, the failure to warn claim is “The Claim” in these drug cases. You must remember that there is more to the plaintiff’s case than just proving inadequate warnings. You must also prove that your client would not have used the drug if properly warned and that the drug is the cause of your client’s injuries. The failure to warn claims help to level the playing field when you go up against a giant drug maker.
