Articles Posted in Pharmaceutical Liability


The time to move for summary judgement is a critical stage in any litigation proceeding. Both or either party can request that the court find that the evidence developed through discovery makes it impossible for one party to win on their claims or defenses, and judgment should be entered in favor of the requesting party. In preparing summary judgment motions, plaintiffs must utilize all of the evidence available to them at that point to convince the judge that no genuine issues of material fact exist. The judge considering the motion will not independently evaluate the record to determine which evidence exists to support a party’s position. Instead, the party must present such evidence through its motion. In a recent case before the Fourth Circuit, a personal injury plaintiff lost on partial summary judgment because she failed to present all of the evidence available to her in her briefing. For reasons discussed below, the Fourth Circuit rejected her efforts to introduce new evidence at a later date.

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prescriptionOne of the concepts involved in initiating a lawsuit that can often be very confusing to plaintiffs is determining the proper court where the lawsuit may be brought. Particularly when lawsuits involve several plaintiffs in different locations, or a defendant company that operates in many states, it can be hard to determine the correct place to begin. While plaintiffs are often given deference in bringing a lawsuit where they would like (assuming the location is still proper), defendants can have lawsuits dismissed when the location is particularly inconvenient and other, more convenient locations are available. This is known as the doctrine of forum non conveniens. A recent case before the West Virginia Supreme Court addresses this doctrine and how it can be applied.

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West Virginia law gives a person injured by another person or entity’s negligence the right to sue those responsible for the injuries. But what happens when the person suing also shares some of the blame? The state Supreme Court recently considered that question in a case brought by a group of people that admitted breaking the law to get their hands on prescription drugs, and sued the doctors and pharmacies that they said helped them become addicted to the controlled substances.

pills-1183584The case involved lawsuits by nearly 30 people against a handful of drug stores and physicians, alleging that the doctors negligently prescribed them certain drugs and that the pharmacies negligently dispensed those drugs, causing the plaintiffs to become hooked on the substances. Each person had been a patient at the Mountain Medical Center, where they were supposedly seeking treatment for car and workplace accidents and were prescribed drugs like Lortab, OxyContin and Xanax. The MMC was later raided by the FBI for violating federal and state law on the prescription of medication. Only one of the pharmacies was subject to criminal penalties related to the raid.

Most of the plaintiffs – if not all – admitted that they had been abusing prescription drugs before they went to MMC, according to the Court. Many of them also said they used fraud or misrepresentation to obtain the drugs from MMC, that they obtained drugs from more than one doctor at the same time and that they sold some of the drugs, all of which are illegal actions. Still, the plaintiffs argued that the pharmacies acted in concert with MMC – which they called a well-known “pill mill” – to get them hooked on the prescription medication. That included filling the prescriptions for excessive time periods and filling prescriptions for separate “synergistic” controlled substances that enhanced the effect of the other drugs.

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The “learned intermediary doctrine” is a legal principle that limits drugmaker liability in certain situation and has been recognized in some jurisdictions across the country. It holds generally that a pharmaceutical company isn’t required to warn each and every individual user of the risks associated with using its drugs, so long as it properly warns prescribing doctors (“learned intermediaries”).

perscription-drugs-2-1160103-m.jpgThe doctrine has already been generally rejected in West Virginia by the state’s highest court. In Muzichuck v. Forest Laboratories, Inc., a local federal court recently explained that the doctrine doesn’t apply even to cases in which the manufacturer doesn’t directly market the drug to end users.

Ms. Muzichuck filed suit against Forest Labs in state court in 2006, alleging that Lexapro – an antidepressant drug manufactured by the company – had caused her husband to commit suicide after being prescribed the drug. Mr. Muzichuck had recently been prescribed an increased dosage of the drug shortly before his death. The company later removed the case to federal district court. It also asserted a number of defenses, including that it shouldn’t be held liable as a result of the learned intermediary doctrine.
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