By: Robert A. Schwartz

Pharmaceutical litigation is expensive and takes on average between 2 – 4 years to complete. The litigation is based on a specific serious injury that was caused the drug in question. Every case is different, and there are factors that affect the strength of the case: length of usage of the drug, seriousness of the specific injury sustained, whether the condition existed prior to the client taking the drug, if the client had taken other drugs that could have caused the same, specific injury, and the relationship in time between when the drug was first taken and the onset of the specific injury. Bailey & Galyen must screen and investigate all potential cases to determine if they fit the very specific criteria that we determine indicates it is a meritorious case that we will receive compensation.

So, from the very beginning of each case, we are investigating its merits so when we file the lawsuit and shortly thereafter file the Fact Sheet, we can tell the drug company everything about that case.

On the other hand, the drug company tells and gives us nothing about our case or their case. They deny every allegation and make us work to obtain every bit of information to prove what we have alleged about their drug. The initial pleading they file denies paragraph by paragraph what is alleged in the lawsuits we file. If the drug company does not outright deny the allegation, it states that it “is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations regarding Plaintiff”. Then the drug company goes on to list numerous “affirmative defenses” which can defeat a claim even if the facts supporting the claim are true. These defenses essentially admit that if the plaintiff’s allegations are true, the claim should be denied for various reasons. The drug companies love these affirmative defenses so much that every case has a litany of them, which often include but are not limited to the following:

1. The lawsuit fails to state a claim upon which relief can be granted.

2. The lawsuit was not filed within the time allowed by that state’s law to file a lawsuit for personal injuries and is barred in whole or in part.

3. The lawsuit was filed in the wrong Court.

4. The lawsuit is barred by a doctrine called the “learned intermediary” or “sophisticated user” defense. When the drug company asserts this doctrine, it is saying that it made full disclosure to the doctor who prescribed the drug to the client, and it was the doctor’s fault for not passing on that information to the client. It puts that physician in the position of a sophisticated purchaser, fully knowledgeable and informed of the risks and benefits of the drug.

5. That the client’s injuries, damages and losses were caused by the client’s own negligence, or by others who the drug company has no control or right to control.

6. That the client’s injuries, damages and losses were caused in whole or in party by his failure to exercise reasonable care and diligence to “mitigate” or decrease those damages.

7. The lawsuit’s state tort law claims are “preempted” by federal law because the drug was researched, tested, developed, manufactured, labeled, marketed and sold in a manner consistent with the state of the art and approved by the FDA.

8. That the drug was “unavoidably unsafe”.

9. That the drug was reasonably safe for its normal and foreseeable use.

10. That client’s injuries were caused in whole or in part by “the unforeseen alteration, unintended use, misuse or abuse of the drug.

Do not misunderstand the drug company’s message. The drug companies try every thing imaginable to have cases dismissed and deny compensation to every seriously injured client. They often spend a million dollars to defend one case at trial, and pull out all of the stops to win. They have no sympathy or empathy for the innocent victim or their family.

So when you see drug company television and print adds saying they will help you afford their drugs or give them to you for free, or how they are working hard to find cures, know that that is part of a crafty public relations program. They don’t make and sell drugs that cure anything. They make and sell drugs that treat symptoms. They want viewers to see what good they do and how they want to help, so when the viewers end up on one of the juries in a case they are a defendant in they will go easy on them.

I don’t know about you, but when I was a child and in raising my children, if an obviously true fact was denied, it was a lie and there were serious repercussions.
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