Both minors and adults can bring medical product and drug cases.

2.  Who can I sue in drug cases?

    A number of different persons and entities may have exposure for liability in drug cases. This would include the manufacturer, supplier or seller of a dangerous drug product if the plaintiff can establish the fault of one of these defendants.

    Further, you can bring a lawsuit against a physician, other health care provider or hospital who prescribed a dangerous drug if the plaintiff can establish that it was below the standard of care for the health care provider to prescribe the drug.

    However, unless it can be established that the physician knew of the risk of the drug or that the prescription was contraindicated given your condition, you will have a very difficult time winning the case against a health care provider.

3.  I have heard that California product liability law favors injured plaintiffs. Is this also true for prescription drugs?

    No. The courts in California, as a matter of public policy, have made it more difficult for plaintiffs to prevail in dangerous drug cases than almost any other type of product case.

    In other product liability cases, all a consumer has to prove is that the product was defectively designed. If the consumer can prove the product was defectively designed, there will be strict liability under the law.

    However, in prescription drug cases, there is no strict liability for defective design and a plaintiff must prove that the product was negligently manufactured or designed.

4.  Isn’t it hard for somebody like me to take on the big drug companies and manufacturers of dangerous drugs?

    Yes, absolutely. Because you must establish negligence in the design and manufacturing process of the product, it becomes virtually impossible for one person alone to take on a drug company. The case may cost millions of dollars, and perhaps tens of millions of dollars to pursue.

5.  So how does a plaintiff ever win a case against a drug manufacturer?

    With rare exceptions, a plaintiff can only prevail in a case against a drug if thousands of other plaintiffs were also injured by the drug and the attorneys in those cases ban together to share expenses and spend the time that it takes to even begin to equal the resources of the drug manufacturers.

6.  What exactly must I prove to win a case against a prescription drug company?

         i.  Something went wrong in the manufacturing process so that the drug was not prepared or manufactured as it was intended to be manufactured.

         ii. The drug was not accompanied by a warning of dangers that the manufacturer knew or should have known at the time the drug left its control; however, a warning to the prescribing physician is sufficient.

7.  I have heard that causation can be a difficult issue in drug cases. Why?

    To prove causation in a legal case, you must prove not only that the product was negligently designed, manufactured or prescribed, but also that it caused your injury, i.e., that it was a substantial factor in your injury.

    The only way that plaintiffs are going to prevail on causation is if there is scientific evidence that the drug the disease from which the plaintiff suffers.

8.  Is investigation necessary in prescription drug cases?

    Yes, absolutely, although it is different than investigation involved in other cases. Of course, information regarding the product should be obtained and maintained such as the product itself and warnings. However, investigation in drug cases really focuses more on research than typical investigation. It is critical that a plaintiff’s attorney learns of all of the scientific research regarding the risks of the product and its causal connection to various disease processes.

9.  Is it necessary to obtain expert witnesses in Vioxx cases?

    Absolutely. Plaintiffs will not only have to do the research but will also have to retain the experts who have performed the research to testify on liability and causation issues and, further, plaintiff’s doctor or a doctor who specializes in the disease process must testify that they believe that plaintiff’s problems are due to the drug at issue.

10. What damages are recoverable in a drug case?

    Under California law a plaintiff who has been injured by a drug is entitled to recover all of his or her past and future medical expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages the excess damages which are awarded to punish the defendant.

    If a person dies as the result of a defective drug, the survivors can recover monetary damages for their economic losses and emotional distress damages for loss of society, love and comfort.

11. Will my case settle out of court?

    If you are part of a large number of plaintiffs, there is a high probability that your case will settle before trial. If you are not and there are no, or few, similar cases, there is a probability that your case will not settle for a significant amount of money unless you can demonstrate that the drug that injured you was not manufactured as intended or you can prove a failure to warn.

12. Do I need to retain an attorney in a drug case?

    Absolutely. You will either need to join a class already represented by an attorney or find a private attorney who is willing to take on your case.

13. How can I afford to hire an attorney and pay for the costs of a case like this?

Most plaintiff attorneys will take a case on a contingency fee basis if they believe that the case has merit and is worth the expense. This means that you do not pay any fee unless you win your case. If you do win the attorney is generally reimbursed for his or her fees and advanced costs out of your recovery. Fees are usually 33% to 40% and costs vary widely from case to case. However, it is critical to retain an attorney that can afford to advance whatever costs are reasonable and necessary for you to win.
 

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If you are taking Vioxx and have suffered from heart attack, stroke or other related symptoms please contact us for a free legal consultation.

Law offices of John D. Winer