Some prescription drugs are extremely risky in terms of both possible harm and certain, known harm caused by the drug. If these drugs, or any other product that is determined to be extremely dangerous, causes harm to the user, strict product liability might apply to the manufacturer of the drug.
What is Strict Product Liability?
Strict product liability is a doctrine in the law that allows a person who is harmed by a dangerous drug (or any other dangerous product) to recover damages for harm caused without bearing the burden of a traditional case in which negligence must be proven.
By contrast, a negligence case requires the plaintiff to prove that the manufacturer did not exercise a proper level of care in the way it manufactured and marketed the product. In other words, the manufacturer owes a duty of care to any and all people who might use its products, and when harm is suffered as a direct result of the use of the product, the manufacturer, marketers, and sellers of the product can be held liable for negligence if shown to have breached that duty. In an action for SPL, no such duty or breach thereof must be proven, but rather, the defendant will be held strictly liable for the harm of the plaintiff, despite not having traditional fault in causing the harm.
To illustrate the concept of when strict liability applies, consider the following:
An owner of a large and remote estate chooses to own a tiger as a pet. Since tigers are extremely dangerous animals, the owner of the tiger will be held strictly liable for any harm to any persons or property that is caused by the tiger. No actions on the part of the owner will be a relevant factor in the resultant lawsuit. Once harmed, any person claiming injuries at the paws of the tiger will have a claim against the owner regardless of actions or lack thereof on the part of the owner that led to the tiger accessing the person or property harmed. Contrast this with the owner of a dog, which is not necessarily an extremely dangerous animal. If a dog harms some person, that person will have to prove that the owner acted in a negligent fashion in allowing the dog to attack the person, as, for example, by failing to secure a fence gate while knowing that the dog kept therein is likely to bite a passer-by.
The most important element to prove in a case for SPL is a defect, which can take three forms: warning, design, and manufacture.
A warning defect
t is simply a failure on the part of the manufacturer to warn patients of relevant side-effects and risks involved in taking the medicine. The warning claimed to be inadequate must be that which does not warn a reasonable person regarding a significant danger. The manufacturer will be held liable for such a defect, if it either knew or should have known about the defect about which it provided inadequate warning. It is this warning requirement that leads to lengthy verbal disclaimers issued during commercial advertisements of prescription drugs.
A manufacturing flaw
arises when the product somehow deviates from the intended design during the manufacturing process. In the case of medical drugs, the chemicals in the medication turn out differently than intended, with harmful results.
arise when the product is manufactured exactly as planned, but the design or formula is somehow inherently harmful. An example is a drug that turns out exactly as intended, but poisons the user and causes either liver or kidney damage.
With any case, damages must be shown. In the case of medical prescriptions, many side-effects can occur and some could cause permanent injuries or illnesses.
Despite the risk and some side-effects, the drug might have extremely high utility for the person using it, and the harm, however great, is outweighed by the benefit of the drug. Consider a person who faces slow and painful death from a terminal disease. If a drug can cure the disease and save the patient’s life, side effects and risks are worth taking in order to avoid the alternative to not taking the drug at all. An example of this is chemotherapy to treat cancer.
Comment K Cases
Perhaps the most common example of this concept is the vaccine for rabies, which carries great risk of producing harm, yet the alternative to this risk is a slow and miserable death. Some similarly situated drugs are considered special cases and classified under the law as Comment K exceptions to the rule of strict liability. This means that the manufacturers of the drugs are not held strictly liable for harm caused by the drugs, so long as proper warnings are issued to both patients and doctors who prescribe them.
Class Action Suits
A common type of suit against a maker of pharmaceuticals is a class action lawsuit. In this type of action, the plaintiff party is a group of people who have suffered similar harm caused by the wrongful action of a defendant party. Usually, a named plaintiff spearheads the action and initiates it on the part of others in the same class of people defined by the same harm suffered by the same defendant. Notice is given to all identifiable plaintiffs, who can either opt into the claim or not. Those who choose not to take part in the claim will have no subsequent claim arising from the same harm at the hand of the same defendant once the class action suit is settled.
Get Experienced Legal Representation to Demand Just Compensation
If you or a loved one has suffered harm from a prescription drug or other medical device, you need experienced and competent legal counsel to recover money for your pain, suffering, lost wages, and other damages. The law provides a streamlined path toward recovery from drugs that were dangerous from the onset. Call the attorneys at the Law Offices of Roger Ghai, P.C. for a confidential consultation, and learn how you can recover from harm caused by a prescription drug.