Vioxx Lawyers Hit Roadblock
If you handle Vioxx or other pharmaceutical claims, you can feel the pain of those Vioxx lawyers in Harris County, Texas. State District Judge Randy Wilson, who oversees all state Vioxx claims, told lawyers in the case of Ruby Ledbetter versus Merck & Co. that he plans to issue an order dismissing her failure to warn claims. The judge has decided that a 2003 Texas Tort Reform law applies to the nearly 900 Vioxx cases pending in that state.
While Florida injury lawyers struggle with legislative changes and dread each time Tallahassee gets geared up for a new session, at least we have been spared some of the draconian tort law changes in Texas. To be sure, if the Vioxx judge is correct then the most effective, indeed the only meaningful claim that is often pursued in pharmaceutical cases will be eliminated.
The fair warning issue is the strongest and most persuasive trial theory in these cases. Most people believe that they are entitled to all available information about a drug’s dangerous side effects so that they can make an informed decision whether to take it or not. The fact that the manufacturer complied with FDA minimum standards does not deprive the jury from determining whether consumers were entitled to more. That is unless federal preemption controls your drug case.
The preemption defense in pharmaceutical product liability cases is deadly. If all drug manufacturers have to do is comply with the FDA warnings or insert requirements, and it does, then you have no failure to warn claim. What is left? While you may plead counts for for strict liability, negligence and warranty, but usually those counts can not be successfully supported. You do not usually find evidence of a manufacturing defect or a defectively designed drug. After a manufacturer spent millions and took years to develop and bring the drug to the marketplace, it would prove fruitless to argue that a safer drug could have been designed. Therefore, we should all keep an eye on what happens in Texas.
