Suing A Drugmaker? File In Minnesota
10 CommentsBy Ed Silverman // December 12th, 2007 // 11:02 am
No, we’re not encouraging litigation. But the North Star state offers something not found in too many other venues - one of the nation’s longest statutes of limitations on personal injury lawsuits. This means someone has up to six years to sue a device or drugmaker for negligence and four years for a strict product-liability claim. Most states have statutes running two or three years.
Not only that, as the ABA Journal points out, no other state allows an out-of-state resident to pursue a lawsuit against an out-of-state company in what would be a time-barred claim in the plaintiff’s home state. In other words, one doesn’t have to live in Minnesota, buy a drug in Minnesota or be treated in Minnesota to file a lawsuit against a company that isn’t based in Minnesota. The only requirement - the company is authorized to do business there. One can, for instance, live in California and sue a New Jersey-based drugmaker in Minnesota if the sales reps visited docs there.
As it so happens, out-of-state plaintiffs make up about 93 percent of drug and medical device cases filed in MinneÂsota’s state and federal courts since federal court filings went online there in May 2004, according to Scott Smith, a defense lawyer contacted by the Journal. The pace of such filings has also skyrocketed, from more than 500 in 2004 to 951 in 2005 to 6,891 in 2006, the last full year for which figures are available. “I think there’s something wrong with a system that not only allows plaintiffs to forum shop but to boast about it in their complaint,†Smith tells the Journal.
Plaintiffs lawyers say that people who have been harmed by a dangerous or defective product have a right to recover from a company whose unsafe product caused their injuries, irrespective of where they live, if the company is selling the same unsafe product to consumers in multiple states. “This is not a bad thing for society at large,†Minneapolis plaintiffs lawyer Gale Pearson tells the mag. “It’s only a bad thing for a company that’s doing something wrong and not telling anybody about it.â€
There are, of course, some interesting implications here. Take Merck. The drugmaker waited about three years before agreeing to a $5 billion settlement, partly because the statute of limitations had run out in 42 states. As Drug & Device Law blog notes, Merck could assume there’s some protection from future lawsuits brought by residents of those 42 states, but what if people start filing Vioxx lawsuits in Minnesota? If enough people claiming heart attacks do so, then Merck may not really have a settlement after all. And uncertainty over legal bills will keep on piling up.
Hat tip to Drug & Device Law and Point Of Law
Lisa Van S
Ed,
This is “GREAT”. See this Story of a child who was harmed by Paxil, who got the shaft from GSK, and her Mother’s open Letter to GSK’s Attorney Sam Griffin; of KING and SPALDING, based in Georgia.
http://www.paxilharmschildren.com
Chris
Lisa,
What does this have to do with the Statute of Limitations in Minnesota?
Nathan
I really don’t think that LVS should be allowed to post advertisements to scam websites unless they have some relevance to the discussion at hand. At least the silly “ssristories.com” was posted in a discussion of antidepressants. This story has nothing to do with Paxil or GSK.
Maybe I’ll just start randomly pointing people to my favorite conspiracy websites too. Try this one: http://www.ufoevidence.org. It’s great. Believe every word of it — it’s gospel truth.
Lisa Van S
Nathan,
Sure it does, When this child turns 18, she can move to anywhere in the United States and file a Civil Lawsuit.
The other great thing about Minnesota….They dont accept the FDA Preemption!!!
Hank
Speaking from another M state which has lived with FDA preemption for twelve years, current cases in the Supreme Court could bring preemption even to Minnesota.
For anyone who believes in there are _appropriate_ times to bring suit, based on the Watergate questions:
1. What did they know?
2. When did they know it?
3. What did they do about it?
It is time to take action. And there is not much time left.
Lisa Van S
Hank,
Well said, and I am aware, that the Preemption is one Hot Potato.
Lori
Hank,
You say it is time to take action. What action(s) are you proposing? Can you be more specific?
Hank
For Lisa - yes, and the hotter the potato, the better as far as I am concerned. Someone will either have to (a) toss it out or (b) eat it.
For Lori - “Action” can mean a lot of things. Here are some examples:
- Every preemption argument turns on a Court’s interpretation of the “intent of Congress.” Traditionally, Congress has balked at stating its will explicitly in these contexts. The most recent instance was during the mark-up over the the FDAAA bill. The relevant language was removed as part of a series of compromises needed to pass the bill. Was it worth it? I guess that’s for citizens to decide. If they don’t think so, then it is not too late for a bill to be introduced that, on its own, will state Congressional intent. That take the usual - letters, op eds, etc. When the “FDA preemption preamble” first came out, in January 06, there was strong response from Congressional opponents. But they did not tie that response into meaningful legislation.
- Above all, awareness. To this point, it’s my impression that people who live in “safe” states really do not believe they could entirely lose their right to bring suit. It took a long time to inform people in our state who were not directly affected. The media is doing a slightly better job with this, but still not well. If the citizens of New York, New Jersey, California, Massachusetts, et. al., really believed they ere on the edge of losing this right, I assume there would be some serious noise. Well, they are on the edge, so I’m hoping for noise.
- This is tougher, but a lot of the arguments in favor of preemption also hinge on certain assertions about how the FDA works, and what companies are actually required to do - and are able to get away with not doing - and still remain “in compliance.” Public or private revelations from within the agency or industry also play a role, as it certainly has historically. Of course, the FDA’s “problems” are no secret. There is a new report every few weeks in which it seems to keep getting worse.
- Physicians also can play a critical role. There was an excellent commentary in JAMA a few months back from Avorn and Kesselheim about the critical role of discovery, in civil trials, and drug safety. Their conclusions were unambiguous. And hearing docs support the critical role of civil liability carries particular weight. Maybe there’s a detailer out there who would carry this JAMA article around with the pens and pizza. Or not.
- Unfortunately, it is hard for the average person to follow the fine points of the legal arguments and precedents (it is, indeed, hard for me). And these can easily be used to mystify the issue, which, in itself, is not complicated. That’s why those of us who are not into mystifying need to push in every context - with friends, co-workers, letters to newspapers, representatives, blogs, and so on - to express our views and keep our eye on the ball (rather than the jugglers).
- The usual consumers’ rights groups are all involved to one extent or other, and can also be vehicles through which to work on this.
James
Why all this obsession over “the children”? I mean, they just turn into adults anyway.
And some of them will end up working for pharma companies, or become doctors and take pens and pizzas.
Is this really the world we want? Where children grow up to become adults?
By the way, Nathan, I couldn’t view the website you posted. I think my tinfoil hat caused interference.
Lisa Van S
James,
“I think my tinfoil hat caused interference”. Your words,.. not mine.
OMG, I could have had a blast responding to that one, but I’ll be nice. Not up for another lecture from Ed at Pharmalot…