Pharmaceutical Litigation

You have likely read the names – Fen-Phen, Vioxx, Baycol, Phenylpropanolamine, Prempro, and many others – of prescription drugs that millions of Americans thought were safe to take on doctors' orders, but later learned were unsafe after suffering catastrophic injuries and even death. Unfortunately, absent a major change in "business as usual" in Washington, D.C., you are likely to continue to see more headlines about "killer drugs." This is because over the past several years the U.S. Food and Drug Administration, which regulates the pharmaceutical industry based solely on studies and data provided to it by the pharmaceutical industry itself (the FDA does no independent testing), has responded favorably to pharmaceutical industry requests to shorten the period of time for approval of newly developed drugs. Where for many years drugs were on the European market before being released for consumption in the United States, we here in the United States are often the first to get to try new drugs that often have only been tested for a year or two on a few hundred patients. No doubt this bears some relationship to the fact that – according to the Center for Public Integrity – members of Congress are currently outnumbered two to one by pharmaceutical company lobbyists, who work for an industry that spends roughly $100 million a year in campaign contributions and lobbying expenses to protect its profits. This same industry knows how to fight those innocent victims who are injured by the industry's pursuit of profits.

The lawyers at Kraft Palmer Davies, PLLC have successfully handled (and are handling) cases involving each of the above-named drugs, among others. We have a strong reputation as pharmaceutical lawyers among our peers in the plaintiffs' personal injury bar all across the United States, and have been hired by other lawyers – from Florida, New Jersey, Pennsylvania, Washington, D.C., Texas, Oregon, California, and Maryland, to name a few – to assist them in representing victims of unsafe prescription drugs. One of our named partners, Lance Palmer, has been assigned by a U.S. District Court Judge the honor of serving as national Plaintiffs' Liaison Counsel to help oversee thousands of pharmaceutical cases assigned for pre-trial proceedings in Seattle.

Washington State product liability claims against the pharmaceutical manufacturers are governed by RCW 7.72.030, regardless of whether the claims are brought in federal or state court. Strict liability claims based on a defective product and failure to warn, as well as negligence claims for post-manufacture failure to warn, are viable claims in this type of litigation. In short, to win an injury victim must prove at least one of three alternative theories of liability against a drug manufacturer.

First, under RCW 7.72.030(a), an injury victim can try to prove that the drug was not reasonably safe as designed if there were safer alternatives for treating the illness for which the drug was prescribed, and the benefits of the drug taken were outweighed by the risk presented – a risk that is usually not known to the injury victim until it is too late.

Second, under RCW 7.72.030(b), an injury victim can try to prove that the drug was not reasonably safe because adequate warnings or instructions were not provided with the product. In other words, prove that had the real risk of taking the drug been spelled out to the injury victim by the manufacturer, the injury victim would have declined to take the drug because of the risk. American drug manufacturers are required to report to the FDA any "serious and unexpected" adverse effects caused by their drugs, whether the adverse effects occur here in the United States or in foreign countries where affiliated manufacturers sell the drug, and this is one of the first bits of information that the experienced personal injury lawyer will look for.

Third, under RCW 7.72.030(c), the injury victim can argue that even if the drug manufacturer did not know of the risks posed by the drug when it initially started marketing the drug, but later found out and did not warn the public, that the manufacturer is liable.

Drug cases are the most expensive and the hardest fought of all personal injury cases. The pharmaceutical companies and their lawyers will first argue that their drugs were safe. They will find and hire scientists willing to testify that the drugs were safe, even if most scientists disagree. The pharmaceutical companies and their lawyers will also argue that even if their drugs were unsafe, they did not know about it until it was too late to warn the consumer, and therefore should not be blamed. To add insult to injury, the pharmaceutical companies and their lawyers will comb through an injury victim's medical history and try to blame the victim's drug-induced injury on every bad habit or pre-existing medical condition that the injury victim had on or before the date of injury. Such cases should only be brought if the injury is serious, and if the lawyer representing the injury victim is an expert at fighting the big drug companies. Most lawyers charge the same 33.33% contingent fee, so there is no reason for a victim of a bad drug to pay the same fee to an inexperienced lawyer as the victim would pay to the most experienced lawyer – this is not the type of litigation where the lawyer should try to get on-the-job training at the client's expense.