Every year, consumers file lawsuits against the pharmaceutical manufacturers, claiming that the manufacturers have negligently produced and marketed dangerous products to the public. To avoid such liabilities, the manufacturers have the duty to follow the strict guidelines that are set by the U.S Food and Drug Administration (FDA) in testing the potential harmful side effects of the drugs. Passing the FDA test alone will not spare the drug manufacturers of liability. In addition, the drug manufacturers have the duty to learn of all the possible side effects of the drugs and assure that the public has been warned of the side effects.
For non-prescription drugs, the manufacturers’ duty to warn of effects is satisfied by enclosing a written warning in the package. On the other hand, simple written warning is not always sufficient for certain types of drugs. Some drugs require doctor supervision before the use of the drugs by the consumer.
For prescription drugs, the manufacturers have a duty to inform only the physicians and/or pharmacists of the potential side effects of the drugs. Once the physicians and/or pharmacists have been adequately informed, the drug manufacturers are held to have satisfied its duty. In some cases, like Vioxx, the manufacturer’s sales efforts and attempts to minimize the risks of a drug may increase their liability.
How to Bring a Claim
To deem the drug manufacturer liable for the injury, the injured party has to prove that (1) the manufacturer had a duty to him/her; (2) the manufacturer’s duty was breached; and (3) the breach of the manufacturer’s duty caused his/her injury. However, in some cases, proving that a certain manufacturer is liable for the injury is difficult, if not impossible because evidence no longer exists to identify the exact drug that caused the injury. In that case, all possible manufacturers of that particular type of drug may be liable for damages. Each manufacturer may be held responsible for an amount reflecting the percentage of the market share it holds. For example, if manufacturer A and B both manufacture a particular type of drug that caused the plaintiff injuries after taking it, and A and B each owns 50 percent of the market, then both A and B will share equal amount of liability.