The Massachusetts Supreme Judicial Court held that Pharmaceutical Companies such as Merck could be held liable for injuries resulting from generic labels even when another company manufactures the generic version of the drug. Known as innovator liability, this precedent could hold big pharmaceutical companies accountable for intentional, reckless conduct where they control the content of a generic drug label and fail to update labeling.
Federal Law Generic Labeling Requirements
Plaintiffs must show that the brand-name drug maker was reckless, not merely negligent in their conduct. According to the United States Supreme Court in PLIVA, Inc. v. Mensing, federal law requires generic drug companies to use the same label as the brand-name version precluding generic drug companies from lawsuits for failing to provide adequate label warnings. This would leave a plaintiff unable to receive compensation for injuries sustained by a generic drug.
Holding Big Pharm Accountable
In this case Brian Rafferty vs. Merck & Co., Inc. Massachusetts Supreme Court Chief Justice Ralph Gants writing for the court said “Where a brand-name drug manufacturer provides an inadequate warning for its own product, it knows or should know that it puts at risk not only the users of its own product, but also the users of the generic product.”
Rafferty had initially sued Merck for negligence for failure to warn after taking finasteride for an enlarged prostate. Finasteride is the generic version of Proscar, manufactured by Merck. Not long after taking the drug, Rafferty experienced side effects including erectile dysfunction and decreased libido. Despite stopping the medication, Rafferty continued suffering the side effects. While finasteride’s label warned of potential side effects including sexual dysfunction, it failed to warn that the side effects would continue after stopping the use of the drug. Finasteride’s label was identical to the label for Proscar as required by federal law. Rafferty alleges that despite knowing about the continued side effects and even changing the label in other countries, Merck did not update the label in the United States. Rafferty alleges that Merck had a duty to warn him of any adverse reactions since they control the label as the brand-name manufacturer.
While the court dismissed the negligence claim, they did recognize the need to protect consumers stating, “to shield brand-name manufacturers entirely from liability for the failure to warn generic drug consumers, (we) would leave those consumers with no chance of obtaining compensation for their injuries because generic manufacturers are already immune from State law claims.” The court found that there is a duty not to intentionally or recklessly cause harm to others.
Other Courts Agree
The California Supreme Court issued a similar ruling regarding innovator liability stating that generic drug users could sue brand-name manufacturers. In T.H., et al. v. Novartis Pharmaceuticals Corporation the California Supreme Court held that “brand-name manufacturers have a duty to use ordinary care in warning about the safety risks of their drugs, regardless of whether the injured party (in reliance on the brand-name manufacturer’s warning) was dispensed the brand-name or a generic version of the drug.”
Find out more from Amicus Media Group and Amicus Capital Group. We are dedicated to bringing you up-to-date information about ongoing mass tort and products liability litigation. Our dedicated team can help you obtain litigation funding and develop a comprehensive marketing campaign. Contact us today for more information.
This blog post does not contain legal or financial advice. Author and publisher disclaim any and all warranties, liabilities, losses, costs, claims, demands, suits, or actions of any type or nature whatsoever, arising from or any way related to this blog, the use of this blog, and/or any claim that a particular technique or device described in this blog.
https://amicusmediagroup.com/wp-content/uploads/2019/01/LOGO-Amicus-10-21-2018_Logo-Landscape-300x118.png00AMICUS MEDIAhttps://amicusmediagroup.com/wp-content/uploads/2019/01/LOGO-Amicus-10-21-2018_Logo-Landscape-300x118.pngAMICUS MEDIA2018-03-22 16:51:272018-03-22 16:51:27Massachusetts: Big Pharma can be held liable for Generic Labeling
Late last month Attorney General Jeff Sessions announced that the Department of Justice would be joining the efforts to combat the deadly opioid crisis gripping America. The Justice Department, under the guidance of Sessions, has designated a task force to track opioid producers who have been flooding the markets. The Department of Justice Prescription Interdiction and Litigation (PIL) Task Force would use civil and criminal penalties to go after opioid manufacturers that violate the law. Sessions appointed federal prosecutor Mary Daly to oversee opioid enforcement.
Justice Department Files Statement of Interest in Opioid Litigation
Sessions also stated that the Justice Department would be filing a “statement of interest” in an Ohio lawsuit currently filed against opioid makers. According to a recent article in the New York Times, the lawsuit goes after manufacturers and distributors of opioids who have used “false, deceptive and unfair marketing of opioid drugs.” The statement of interest does not make the Justice Department a party to the lawsuit, but it could hold some persuasive power.
The Justice Department has joined a lawsuit out of the Federal District Court in Cleveland. Sessions has joined attorneys general from seven states to combat the national epidemic which is believed to have cost more than $4 billion from the federal Medicare program. Over 400 complaints were consolidated out of the Ohio courthouse. US District Court Judge Dan Polster is overseeing the MDL. Many believe it could result in a substantial settlement not seen since the tobacco company payouts in 1998. The settlement included a $206 billion payout over the first 25 years of the agreement by the four largest tobacco companies: Phillip Morris Inc., R. J. Reynolds, Brown & Williamson, and Lorillard.[1]
History of the Opioid Crisis
The opioid crisis is nothing new in America, what is new is the number of people who have access to the drugs such as oxycodone and fentanyl. More alarming is the ease at which doctors were prescribing the potentially life-threatening drugs. Plaintiffs argue that manufacturers misled consumers and doctors about the risk of abuse, addiction, the risk of overdose and death. It is believed that opioid overdoses were responsible for the deaths of 64,000 people. Aggressive marketing by Purdue Pharma and other drug manufacturers leads to a massive jump in the number of doctors prescribing opioid painkillers and a huge increase in the number of people who die from an opioid overdose. According to the Attorney General, 180 Americans die every day from drug overdoses.[2]
Interested in representing those affected by the opioid epidemic? Amicus Media Group can help you acquire more cases with less risk. Contact our qualified case management specialists today to learn more about getting quality cases with a company founded on trust, transparency and with a proven track record. We bring cost-effective solutions to your marketing needs focusing on mass tort, personal injury and class action litigation. Contact us today to learn more about how to deliver your message to prospective clients across the country.
This blog post does not contain legal or financial advice. Author and publisher disclaim any and all warranties, liabilities, losses, costs, claims, demands, suits, or actions of any type or nature whatsoever, arising from or any way related to this blog, the use of this blog, and/or any claim that a particular technique or device described in this blog.
Online reviews are an essential component of any digital marketing campaign. Positive client reviews create what is known as social proof. Social proof or informational social influence “is a psychological phenomenon where people assume the actions of others reflect correct behavior for a given situation.” The idea is that if something has been accepted or liked by others, then more people will be motivated to use that product, try that business or use that service. In addition to reviews, social proof can be offered by trusted industry leaders recommending a service or product, testimonials or even social media followers. A large percentage of people go to yelp before trying a new restaurant. Consumers regularly rely on google reviews before purchasing a product. It can be tempting to solicit positive reviews by whatever means necessary. The problem is that it could get you in big trouble.
Client Reviews: The Good
As we mentioned, client reviews offer social proof that your business is well-liked and that you are good at what you do. As attorneys, word-of-mouth has been an essential component to getting new clients. You do good work for your client; they tell others, you get new clients. Enter the digital world and an ultra-competitive market. Word-of-mouth referrals are no longer enough to keep most firms afloat. You must have a robust online presence and a comprehensive digital marketing campaign to compete. Even if you are getting old school word-of-mouth referrals, those prospective clients are still going online. The original personal recommendation may have gotten them to your website, but the social proof will be what makes them give you a call.
Online Reviews: The Bad
When asking clients to leave reviews, or even when you don’t ask, you run the risk of receiving a negative review. It could be a legitimate client who feels that you performed less-than-adequate work for them. It could be a competitor (which brings a whole other set of ethical concerns). It could even be a disgruntled ex-employee or girlfriend or anybody with a keyboard. The internet offers anonymity and while review sites such as Yelp, AVVO and Google are working hard to stop fake reviews, they still exist. If you do receive a negative review, you need to take steps to address it. Responding immediately out of frustration or anger is never a good idea, but you do want to take time to issue a rational response. If you feel that an actual client did not leave the review, you can petition the site to have it removed.
And Now… The Ugly
Attorneys have to be very careful when dealing with online reviews. There are definite ethical considerations in soliciting client reviews that can not only get your highly sought after positive reviews removed from a review website but can also get you in hot water with the state bar association. Most Rules on Professional Conduct prohibit offering any money in exchange for reviews or endorsements unless it is marked as a “paid” endorsement. Some ban it altogether. Review sites have started to take action as well. Google recently removed nearly 100 positive reviews solicited from an attorney who offered free zoo tickets as an incentive.
That being said – we in no way want to discourage you from getting online reviews. They are an essential part of your online footprint. They can serve a crucial role in getting new clients and are a great way to establish your firm as an industry leader. We only caution against an all-or-nothing strategy. Do good work, have a reliable system for closing out case files and asking for reviews. The rest is easy. Well, not easy, but worth the effort.
Learn more about the importance of social proof from Amicus Media Group. We are a full-service legal marketing firm. Our network of media relationships is unparalleled. We will work directly with you to develop a customized ad campaign to get you more cases at less risk. Contact us today for a free consultation.
This blog post does not contain legal or financial advice. Author and publisher disclaim any and all warranties, liabilities, losses, costs, claims, demands, suits, or actions of any type or nature whatsoever, arising from or any way related to this blog, the use of this blog, and/or any claim that a particular technique or device described in this blog.
https://amicusmediagroup.com/wp-content/uploads/2019/01/LOGO-Amicus-10-21-2018_Logo-Landscape-300x118.png00AMICUS MEDIAhttps://amicusmediagroup.com/wp-content/uploads/2019/01/LOGO-Amicus-10-21-2018_Logo-Landscape-300x118.pngAMICUS MEDIA2018-03-09 17:22:162018-03-09 17:22:16Online Reviews: The Good, The Bad and The Ugly
Massachusetts: Big Pharma can be held liable for Generic Labeling
The Massachusetts Supreme Judicial Court held that Pharmaceutical Companies such as Merck could be held liable for injuries resulting from generic labels even when another company manufactures the generic version of the drug. Known as innovator liability, this precedent could hold big pharmaceutical companies accountable for intentional, reckless conduct where they control the content of a generic drug label and fail to update labeling.
Federal Law Generic Labeling Requirements
Plaintiffs must show that the brand-name drug maker was reckless, not merely negligent in their conduct. According to the United States Supreme Court in PLIVA, Inc. v. Mensing, federal law requires generic drug companies to use the same label as the brand-name version precluding generic drug companies from lawsuits for failing to provide adequate label warnings. This would leave a plaintiff unable to receive compensation for injuries sustained by a generic drug.
Holding Big Pharm Accountable
In this case Brian Rafferty vs. Merck & Co., Inc. Massachusetts Supreme Court Chief Justice Ralph Gants writing for the court said “Where a brand-name drug manufacturer provides an inadequate warning for its own product, it knows or should know that it puts at risk not only the users of its own product, but also the users of the generic product.”
Rafferty had initially sued Merck for negligence for failure to warn after taking finasteride for an enlarged prostate. Finasteride is the generic version of Proscar, manufactured by Merck. Not long after taking the drug, Rafferty experienced side effects including erectile dysfunction and decreased libido. Despite stopping the medication, Rafferty continued suffering the side effects. While finasteride’s label warned of potential side effects including sexual dysfunction, it failed to warn that the side effects would continue after stopping the use of the drug. Finasteride’s label was identical to the label for Proscar as required by federal law. Rafferty alleges that despite knowing about the continued side effects and even changing the label in other countries, Merck did not update the label in the United States. Rafferty alleges that Merck had a duty to warn him of any adverse reactions since they control the label as the brand-name manufacturer.
While the court dismissed the negligence claim, they did recognize the need to protect consumers stating, “to shield brand-name manufacturers entirely from liability for the failure to warn generic drug consumers, (we) would leave those consumers with no chance of obtaining compensation for their injuries because generic manufacturers are already immune from State law claims.” The court found that there is a duty not to intentionally or recklessly cause harm to others.
Other Courts Agree
The California Supreme Court issued a similar ruling regarding innovator liability stating that generic drug users could sue brand-name manufacturers. In T.H., et al. v. Novartis Pharmaceuticals Corporation the California Supreme Court held that “brand-name manufacturers have a duty to use ordinary care in warning about the safety risks of their drugs, regardless of whether the injured party (in reliance on the brand-name manufacturer’s warning) was dispensed the brand-name or a generic version of the drug.”
Find out more from Amicus Media Group and Amicus Capital Group. We are dedicated to bringing you up-to-date information about ongoing mass tort and products liability litigation. Our dedicated team can help you obtain litigation funding and develop a comprehensive marketing campaign. Contact us today for more information.
This blog post does not contain legal or financial advice. Author and publisher disclaim any and all warranties, liabilities, losses, costs, claims, demands, suits, or actions of any type or nature whatsoever, arising from or any way related to this blog, the use of this blog, and/or any claim that a particular technique or device described in this blog.
DOJ Joins Plaintiffs in Opioid Lawsuit
Late last month Attorney General Jeff Sessions announced that the Department of Justice would be joining the efforts to combat the deadly opioid crisis gripping America. The Justice Department, under the guidance of Sessions, has designated a task force to track opioid producers who have been flooding the markets. The Department of Justice Prescription Interdiction and Litigation (PIL) Task Force would use civil and criminal penalties to go after opioid manufacturers that violate the law. Sessions appointed federal prosecutor Mary Daly to oversee opioid enforcement.
Justice Department Files Statement of Interest in Opioid Litigation
Sessions also stated that the Justice Department would be filing a “statement of interest” in an Ohio lawsuit currently filed against opioid makers. According to a recent article in the New York Times, the lawsuit goes after manufacturers and distributors of opioids who have used “false, deceptive and unfair marketing of opioid drugs.” The statement of interest does not make the Justice Department a party to the lawsuit, but it could hold some persuasive power.
The Justice Department has joined a lawsuit out of the Federal District Court in Cleveland. Sessions has joined attorneys general from seven states to combat the national epidemic which is believed to have cost more than $4 billion from the federal Medicare program. Over 400 complaints were consolidated out of the Ohio courthouse. US District Court Judge Dan Polster is overseeing the MDL. Many believe it could result in a substantial settlement not seen since the tobacco company payouts in 1998. The settlement included a $206 billion payout over the first 25 years of the agreement by the four largest tobacco companies: Phillip Morris Inc., R. J. Reynolds, Brown & Williamson, and Lorillard.[1]
History of the Opioid Crisis
The opioid crisis is nothing new in America, what is new is the number of people who have access to the drugs such as oxycodone and fentanyl. More alarming is the ease at which doctors were prescribing the potentially life-threatening drugs. Plaintiffs argue that manufacturers misled consumers and doctors about the risk of abuse, addiction, the risk of overdose and death. It is believed that opioid overdoses were responsible for the deaths of 64,000 people. Aggressive marketing by Purdue Pharma and other drug manufacturers leads to a massive jump in the number of doctors prescribing opioid painkillers and a huge increase in the number of people who die from an opioid overdose. According to the Attorney General, 180 Americans die every day from drug overdoses.[2]
Interested in representing those affected by the opioid epidemic? Amicus Media Group can help you acquire more cases with less risk. Contact our qualified case management specialists today to learn more about getting quality cases with a company founded on trust, transparency and with a proven track record. We bring cost-effective solutions to your marketing needs focusing on mass tort, personal injury and class action litigation. Contact us today to learn more about how to deliver your message to prospective clients across the country.
This blog post does not contain legal or financial advice. Author and publisher disclaim any and all warranties, liabilities, losses, costs, claims, demands, suits, or actions of any type or nature whatsoever, arising from or any way related to this blog, the use of this blog, and/or any claim that a particular technique or device described in this blog.
[1] https://web.archive.org/web/20080625084126/http://www.naag.org/backpages/naag/tobacco/msa/msa-pdf/1109185724_1032468605_cigmsa.pdf
[2] https://www.justice.gov/opa/pr/attorney-general-sessions-announces-new-prescription-interdiction-litigation-task-force
Online Reviews: The Good, The Bad and The Ugly
Online reviews are an essential component of any digital marketing campaign. Positive client reviews create what is known as social proof. Social proof or informational social influence “is a psychological phenomenon where people assume the actions of others reflect correct behavior for a given situation.” The idea is that if something has been accepted or liked by others, then more people will be motivated to use that product, try that business or use that service. In addition to reviews, social proof can be offered by trusted industry leaders recommending a service or product, testimonials or even social media followers. A large percentage of people go to yelp before trying a new restaurant. Consumers regularly rely on google reviews before purchasing a product. It can be tempting to solicit positive reviews by whatever means necessary. The problem is that it could get you in big trouble.
Client Reviews: The Good
As we mentioned, client reviews offer social proof that your business is well-liked and that you are good at what you do. As attorneys, word-of-mouth has been an essential component to getting new clients. You do good work for your client; they tell others, you get new clients. Enter the digital world and an ultra-competitive market. Word-of-mouth referrals are no longer enough to keep most firms afloat. You must have a robust online presence and a comprehensive digital marketing campaign to compete. Even if you are getting old school word-of-mouth referrals, those prospective clients are still going online. The original personal recommendation may have gotten them to your website, but the social proof will be what makes them give you a call.
Online Reviews: The Bad
When asking clients to leave reviews, or even when you don’t ask, you run the risk of receiving a negative review. It could be a legitimate client who feels that you performed less-than-adequate work for them. It could be a competitor (which brings a whole other set of ethical concerns). It could even be a disgruntled ex-employee or girlfriend or anybody with a keyboard. The internet offers anonymity and while review sites such as Yelp, AVVO and Google are working hard to stop fake reviews, they still exist. If you do receive a negative review, you need to take steps to address it. Responding immediately out of frustration or anger is never a good idea, but you do want to take time to issue a rational response. If you feel that an actual client did not leave the review, you can petition the site to have it removed.
And Now… The Ugly
Attorneys have to be very careful when dealing with online reviews. There are definite ethical considerations in soliciting client reviews that can not only get your highly sought after positive reviews removed from a review website but can also get you in hot water with the state bar association. Most Rules on Professional Conduct prohibit offering any money in exchange for reviews or endorsements unless it is marked as a “paid” endorsement. Some ban it altogether. Review sites have started to take action as well. Google recently removed nearly 100 positive reviews solicited from an attorney who offered free zoo tickets as an incentive.
That being said – we in no way want to discourage you from getting online reviews. They are an essential part of your online footprint. They can serve a crucial role in getting new clients and are a great way to establish your firm as an industry leader. We only caution against an all-or-nothing strategy. Do good work, have a reliable system for closing out case files and asking for reviews. The rest is easy. Well, not easy, but worth the effort.
Learn more about the importance of social proof from Amicus Media Group. We are a full-service legal marketing firm. Our network of media relationships is unparalleled. We will work directly with you to develop a customized ad campaign to get you more cases at less risk. Contact us today for a free consultation.
This blog post does not contain legal or financial advice. Author and publisher disclaim any and all warranties, liabilities, losses, costs, claims, demands, suits, or actions of any type or nature whatsoever, arising from or any way related to this blog, the use of this blog, and/or any claim that a particular technique or device described in this blog.