The Nuts and Bolts of a Dangerous Drug Claim

by | Oct 14, 2020 | Injuries, Products Liability

At first blush, dangerous drug claims are deceptively simple. Drug manufacturers are strictly liable for the damages their dangerous products cause. But this simple rule does not fully capture all the complexities involved in these cases. Additionally, many drug manufacturers fight these claims tooth and nail. They refuse to settle them, for fear of harming their brand positions.

There are many more dangerous drug claims today than there were a generation ago. In the 1990s, the federal government began allowing drug companies to market their wares directly to consumers. As a result, many patients demand that their doctors write certain prescriptions, and many doctors give in.

Because the battle lines are so clearly drawn (serious injuries against a drug company’s refusal to face facts), victims need tough Lexington personal injury attorneys in these situations. These attorneys must have the tenacity and the resources to take on big drug companies. That’s a rare combination that only a few lawyers have.

Injury Timeline

Generally, the statute of limitations is one year in a personal injury case although it varies greatly state to state. Frequently, dangerous drug victims are not fully aware of their injuries until many years later. Fortunately, the discovery rule usually applies in these situations. The one-year statute of limitation clock does not start ticking until victims:

  • Discover the full extent of their injuries, and
  • Connect that injury to a certain product or activity.

Assume Raphael took Drug X for ninety days in 2016. A year later, the manufacturer added a warning that Drug X could cause kidney disease. In 2018, Raphael began experiencing sporadic abdominal pain. The next year, doctors finally diagnosed him with kidney disease. Finally, in 2020, Raphael saw a TV news special about the link between Drug X and kidney disease.

Clearly, the discovery rule comes into play in this situation. But its specific implications are far from certain.

The drug manufacturer would probably argue that the statute of limitations clock began running in either 2017 or 2018, when the new label appeared or when Rapahel first experienced symptoms. But a better interpretation is that the clock did not start running until 2020, when Rapahel conclusively knew the extent of his injury and conclusively knew the connection to Drug X. 

Therefore, Raphael has until 2021 to file a claim for damages. That additional time preserves his legal right to recovery and gives his counsel more time to prepare a case.

Theoretical Liability

One again, this portion of a dangerous drug claim is rather straightforward. Let’s stay with the above example. Raphael does not have to prove why Drug X caused kidney disease. Raphael only needs to establish a link. Many studies in this area are basically medical records comparisons. If 10,000 people took Drug X and 500 of them contracted kidney disease, there is probably a connection. At least, there is enough of a connection to merit a warning.

Failure to warn is a related claim in most dangerous drug claims. Frequently, the company knew about the drug’s hazard, but did not warn customers about the risk. Such behavior often prompts jurors to award significant punitive damages in these claims. INdeed, the amount of punitive damages normally exceeds the amount of compensatory damages.

Large damages awards are the only way to convince drug companies to change their ways. Money is essentially the only language these companies speak. So, unless the financial penalty is high, they will go on hurting more people in order to increase their profits.

Practical Liability

As mentioned, Raphael does not have to prove why Drug X caused his injuries. However, it’s much easier for the jury to follow these claims if Rapahel’s expert describes the connection in detail.

Speaking of experts, these individuals are absolutely necessary in dangerous drug claims. These professionals must qualify legally and also present compelling testimony.

Both areas are essential. Drug manufacturers have posses of experts who routinely testify that the most dangerous drugs on the market are as safe as mother’s milk. It’s usually not enough to point out these experts are essentially hard guns. Everyone knows that. Instead, an attorney must undermine the expert’s credibility in some way.

Dangerous drug victims need only establish liability by a preponderance of the evidence. That’s the lowest burden of proof in Kentucky law.

Dangerous drug victims might be entitled to significant compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters..