How many chemicals are you exposed to in an average day? That’s a rhetorical question, of course, because the number is too great to count. Most of this exposure is unavoidable. But when you are prescribed a pharmaceutical, and the very medicine that was supposed to help you ends up hurting you – well, that demands a response. Fortunately, Connecticut product liability law can provide you with the legal arsenal you need to demand fair compensation.
The Most Dangerous Pharmaceuticals
The frightening reality is that any drug can be dangerous. Certain types of drugs, however, are the subject of lawsuits far more often than other types. Some of the most dangerous types of drugs include (among others):
- Blood thinners such as Xarelto
- Prednisone or Cortisone
- Cholesterol lowering drugs such as Mevacor
- ADD/ADHD drugs such as Ritalin
- Diuretics such as Chlorothiazide
Don’t panic if you are taking one of these drugs – most drugs are safe, even the ones in relatively dangerous classes. You should, however, familiarize yourself with the symptoms that people have experienced as a consequence of taking these drugs.
How Strict Products Liability Works
If you have been harmed by a pharmaceutical, you may have a medical malpractice claim against the doctor who prescribed the drug to you. On the other hand, the problem may be the drug itself. If the problem is the drug, then you will need to assert a products liability claim. For most people, the best way to win such a claim is to proceed under a strict product liability law, because you don’t even have to prove that the defendant was at fault to win.
To qualify for compensation under Connecticut strict product liability law, you must prove four facts:
1) The defendant was a merchant seller of the drug – the manufacturer, wholesaler, distributor, or retailer – but not a private party.
2) The drug was both defective and unreasonably dangerous. Note that it is possible for a drug to be defective but not unreasonably dangerous.
3) The defect was present when the drug left the defendant’s control (when it was shipped out of the factory, for example), and it reached you without any substantial change in its condition.
4) The defect is what caused the harm that you are complaining of.
Other Theories of Liability
Under certain circumstances, you might be better off filing a lawsuit on another theory of liability. You might proceed under a negligence theory if, for example, a pharmacy gave you the wrong medication and you were harmed as a result, or if you purchased a generic drug that had already been recalled by the US Food and Drug Administration (FDA) and yet the pharmacy failed to remove the drug from their inventory.
You might also proceed under a breach of warranty theory if the seller made certain representations to you that turned out not to be true, and if your illness or injury was a consequence of the failure of the product to comply with those representations. In most cases, however, your best bet is to proceed under a strict liability theory as described above.
Time Limitations: The Statute of Limitations, the Discovery Rule, and the Statute of Repose
There are two main time limits on your ability to file a bad drug lawsuit: the statute of limitations and the statute of repose.
The Statute of Limitations
Under the statute of limitations, you have three years from the date of your injury to file a lawsuit. If you are filing a wrongful death lawsuit on behalf of a victim who died from taking a defective drug, you have until three years after the victim died. This three-year deadline can be extended in both cases if you did not know of the injury until later, as long as your lack of knowledge was reasonable.
The Statute of Repose
Even if you beat the statute of limitations, the statute of repose might bar your claim. Under the Connecticut statute of repose, you must file your lawsuit within ten years after you last parted with possession of the drug in question. The statute of repose includes three exceptions to the ten-year limitation, however:
- If the useful “safe life” of the drug is longer than 10 years;
- If your failure to file in time was a consequence of a misrepresentation or fraudulent concealment on the part of the product seller; or
- The warranty period was longer than 10 years.
Under strict products liability law, you can sue any entity in the chain of distribution of the drug – the manufacturer, the wholesaler, the retailer, or even your local pharmacy. Since you don’t have to prove fault, you can claim a manufacturing defect against a pharmacy even though the pharmacy did not manufacture the drug. Although “sue everybody in sight” isn’t the appropriate strategy, it is a good idea to err on the side of casting a wide net rather than a narrow one.
To win your bad drug claim, you are going to have to identify a particular type of defect that the drug possesses that caused it to become unreasonably dangerous. You have three choices: a design defect, a manufacturing defect, and a warning defect.
In a design defect claim, you are claiming that the drug is defective even when it is manufactured exactly as intended. The problem may lie with the molecular structure of the drug itself, for example.
In a manufacturing defect claim, you are claiming that something went wrong during the process of manufacturing the drug, such that the drug you received wasn’t manufactured the way it was designed. You don’t need to prove exactly what mistake was made or who was responsible for it.
Warning Defects (Defective Product Warnings)
Some product dangers are unavoidable, and just because a certain drug possesses unavoidable dangers doesn’t mean that it is “unreasonably” dangerous. Some dangers, however, are acceptable as long as the user or the prescribing doctor knows about them – but unreasonable if they are not known of. When a drug manufacturer fails to include appropriate warnings in its marketing of a drug, the drug is said to contain a “warning defect.”
Stumbling Block: Proximate Cause
No matter what else you prove, you must also prove that the defect in the drug actually caused your injury or illness. This can be difficult if, say, you are alleging that your daily use of a certain drug caused you to develop an illness five years after you stopped taking it – especially if the harm you are complaining of could have been caused by many different factors. A good products liability lawyer can help you overcome this limitation.
Stumbling Block: Stale Evidence
Another limitation that applies when your illness or injury arises long after you stopped taking the drug is stale evidence. Documents may have disappeared, witnesses’ memories may have faded, etc. There are ways around these limitations as well (the use of expert witnesses and statistical correlations, for example), although no guarantees can be made.
Stumbling Block: Scientific Complexity
Defective drug cases are typically scientifically complex, which is why you will need an experienced defective drug lawyer handling your case. It is likely that your lawyer will call expert witnesses to testify on behalf of your claim. These witnesses are usually paid, and the other side will not hesitate to make sure the court realizes this. Nevertheless, the use of paid witnesses is routine in cases of this sort. The other side may call expert witnesses as well.
What Is a “Preponderance of Evidence”?
The “preponderance of evidence” is the standard of proof used in a civil trial such as a bad drug lawsuit. It is much easier to meet this standard of proof than to meet the “beyond a reasonable doubt” standard used in a criminal trial. Essentially, a preponderance of evidence is enough evidence to prove that some asserted fact is more than 50 percent likely to be true.
Unconventional Litigation Options
Suppose 10,000 people are injured by the same badly designed drug. Instead of 10,000 lawsuits repeating virtually the same evidence and the same type of harm, the legal system offers two alternatives that allow many claimants to band together to have their various lawsuits consolidated into a single action.
Mass Tort Lawsuits
In a mass tort lawsuit, each injured party is treated as an individual and must prove his case to the court. Many aspects of civil procedure are consolidated in order to achieve a more efficient process and outcome.
Class Action Lawsuits
In a class action lawsuit, all similarly situated injured parties are treated as a single class. And one injured party, whose case is considered representative of all of them, is treated as a representative of the entire class. Any damages awarded will be distributed among the injured parties, according to the degree of the seriousness of their injury. You do not have to participate in a class action lawsuit. You must be notified, and if you opt out, you can still file your own lawsuit.
Can I Settle out of Court?
Yes, you can. In fact, this is how most bad drug lawsuits are eventually resolved. It is possible, of course, to negotiate a settlement without even filing a lawsuit. Even after you file a lawsuit, however, it is still possible to settle the case before trial. Even if a verdict is reached, the parties can reach a settlement whereby one party pays the other party not to file an appeal or to withdraw an appeal that has already been filed. Most defendants prefer settlement to trial.
Time Is Important
If you have been harmed by a defective drug, delaying matters is not going to help you win compensation – in fact, it might eventually defeat your clam all by itself. Since bad drug lawsuits can get technically complex, you are going to need professional assistance to build and maintain your claim.
If you find yourself in these circumstances, call Berkowitz Hanna today or contact us online for a free initial consultation. We take cases from the entire state of Connecticut from our offices in Stamford, Bridgeport, Danbury and Shelton. We operate on a contingency basis, which means that you only pay us if we win.