Most of us pay our bills on time. If we break a neighbor’s rake, we promptly purchase a replacement. If our child dumps fruit punch on a friend’s carpet, we pay to have it cleaned. In fact, we don’t really think about these unwritten rules often; it’s just the right thing to do, so most of us do it instinctually: if we cause damage, we pay for the damage. But too often companies refuse to pay fair settlements to resolve product failure cases, even in the face of a mountain of evidence that (1) the product clearly failed and (2) the failure physically injured the person. For example, let’s say a sixty-eight year old retired schoolteacher learns her metal-on-metal artificial hip implant has failed; her doctor tells her that, in addition to the pain she feels in her hip and leg, she now suffers from dangerously high cobalt and chromium levels (a condition called “metallosis”). Thousands of other injured people have similar claims, but the manufacturer of the failed hip product simply won’t pay. Why not?

Well, I can’t know all the reasons, but let’s look at a few theories:

Companies Don’t Like to Pay Settlements

Companies do not like to pay claims, period. Companies are in the business of making money, not paying out money. Corporations are under enormous pressure to maximize value for their stakeholders, primarily those people who buy their stock. Paying out two billion dollars in settlements for a failed artificial hip is never good for the bottom line.

Companies Can Get Away with Not Paying

The playbook is no secret: when a company first receives complaints about a failing product, it almost always denies that the product is defective. When scholarly, peer-reviewed studies establish that the product is defective, the company invariably commissions its own studies on the product, and often those studies conclude that the product is safe or that the dangers have not been proven. When litigation begins, the company defends itself vigorously, because it is always the case that the company has much more money than any injured plaintiff and can use its superior financial position to grind down injured plaintiffs, even thousands of them.

Settlement Delays Are Profitable

Let’s say a defective product injures 12,000 people, and the company negotiated three billion dollars in a global settlement for the injured plaintiffs. And let’s say the company could pay today or, through artful delays, two years from now. Eight percent interest on three billion dollars for two years is four hundred and eighty million dollars ($480,000,000). That’s real money. If a corporation can delay settlement discussions for two or four or six years before finally paying out claims, the company comes out ahead.

Another positive result of delays is this: some injured people just give up. Some plaintiffs may walk away, or accept a reduced offer, or lose interest, or may even grow old and die. There is no question that justice delayed is justice denied for injured people. Corporations understand this.

One Example: Johnson & Johnson

Recently, Johnson & Johnson has taken a harder line against paying settlements. One Johnson & Johnson defense attorney said that J&J is inundated with lawsuits and that if the company paid every claim it could get a reputation as an “easy mark.” In 2018 alone, J&J spent two billion dollars on settlements and attorneys’ fees. According to reports, J&J is defending 100,000 lawsuits involving hip implants, surgical mesh, baby powder, prescription drugs, and other product cases. One school of thought holds that the massive number of pending lawsuits is actually a deterrent to settlement for J&J.

Medical device and drug companies like J&J can get burned with aggressive no-settlement policies. DePuy Orthopaedics, owned by J&J, lost several huge verdicts in the DePuy Pinnacle hip litigation. And last year a jury awarded damages of $4.7 billion to a group of women who used J&J’s baby powder and were later diagnosed with cancer. There is no question that J&J could have settled with these 22 women years ago for a fraction of that jury verdict. (Of course, J&J has appealed.)

Then there is the loss of goodwill in this scorched-earth litigation strategy. According to a report in Law360, in 2016 J&J was considered the sixth most reputable company in the United States. By 2018 it had dropped out of the top 100. Goodwill matters.

Finally, one important reason for companies like Johnson & Johnson to pay valid claims is this: it is the right thing to do. When corporations offer safe products that improve people’s lives, they should make a lot of money selling the products. But when one of their products turns out to be flawed and harmful, companies should want to do the right thing and pay all the valid claims, promptly.

Note: References to individuals in this article are fictional and hypothetical and do not represent any current or former clients, or any other person. Information about Johnson & Johnson was distilled from online news sources, including Law360, which own their content.

I’ve been writing on this product liability website for three years. I have now published over 200 articles, and two ebooks, and a page with definitions, and another page providing links to other useful websites, and yet another page where I answer “frequently asked questions” about medical devices and prescription medications, and a bunch of other information. I know many of you have benefited from this information because you have called and told me you have benefited. (I really like getting these calls.) I intend to keep writing articles as often as I can while maintaining a full-time product liability practice.

But today I am excited to announce the launch of my podcast:

Failed Hips and Harmful Drugs: The Product Liability Podcast

In this podcast I will answer your product liability questions, except in a new audio format. This way you can discover a few things about medical device and drug litigation while you walk, or drive to work, or garden. The podcast will focus on the BIG QUESTIONS I often get from people calling my office. Down the road I will interview key individuals who may be able to provide deeper insight into the problems of failed medical devices and harmful prescription drugs. And I encourage you to reach out to me with pressing product liability questions. Who knows? My answers may become my next podcast episode.

To listen to the first two podcasts, simply click the link above, or click “Podcast” on the menu bar at the top of this site. I will also make these podcast episodes available on iTunes, Stitcher, Radio Public, Tunein Radio, and anywhere else I can find to post them.

As always, if you want to talk about a specific issue you may be having with a failing medical device or a problem drug, you can email me or call me at any time: 919.830.5602.

You scratch my back, I’ll scratch yours. Favors are often exchanged among friends and family. But what most people don’t know, or don’t want to know, is that questionable “favors” are also exchanged in professional and business relationships. Over the years, there have been reports that favors, or benefits, are too often exchanged between drug manufacturers and doctors and hospitals who prescribe medicines.

Recent studies have explored this relationship and compared data to see if drug makers are, effectively, paying doctors to prescribe their medications.

In 2010, the Affordable Care Act included a section called the Physician Payment Sunshine Act. This Act requires drug and device manufacturers to report any and all payments made to physicians and hospitals. Since 2013, 40.74 million records have been published and $24.92 billion dollars have been given to doctors and hospitals from drug and device manufacturers. The Sunshine Act has been successful at exposing these payments.

Open Payments is a website that provides a listing of doctors who receive money or incentives from drug manufacturers. The website is very easy to use; you can visit the website and simply type the name of a doctor or hospital in the search bar and see if they are receiving money – how much, from whom, and when.

Recently, UNC-Chapel Hill conducted a study to determine if there was a correlation between the amount of money doctors received from drug companies and the frequency with which doctors prescribe that company’s drugs. Put another way – are doctors more likely to prescribe a company’s drug if that company is giving them money?

The study used information and data from the Open Payments website as well as from the Centers for Medicare & Medicaid Services to answer that question. Turns out, the answer is “yes.” Focusing specifically on cancer doctors, the research study found that there are “increased odds of prescribing a manufacturer’s drug among physicians receiving payments.”

Unfortunately, this study is not the first of its kind. Research has shown this correlation, an increased likelihood of prescribing a company’s medicine if that company pays the doctor or hospital, for many different types of medications.

For example, in 2016, a similar study was performed, this time focusing on cholesterol medicines. The same conclusion was made – manufacturer payments to doctors and hospitals correspond with higher rates of prescribing that manufacturer’s cholesterol medicine.

While all medicines are supposed to help patients, there is a potential concern that doctors might not be prescribing a medicine that is best for the patient, but rather prescribing a medicine that is best for their bank account.

If you are wondering if your doctor is receiving payments for prescribing specific drugs, ask your doctor or go to the Open Payments website. As I always advise, it is important to do your homework on your doctor, your medications, your medical devices, everything related to your health. (Of course, you should also do your homework on your choice of attorney as well.) If you would like to discuss any prescription medication that gives you concern, give me a call and we can sort it out.

Have you been directly affected by the opioid epidemic in America? Millions of people have become addicted to these powerful drugs—and for many, that addiction started with a legally prescribed medication to treat legitimate pain. One report estimated that more than 59,000 people died from drug overdoses in 2016—and most of those were caused by opioids. The President has even declared opioid abuse a national public health emergency.

I’ve written before in this space about the opioid epidemic and the massive opioid litigation gearing up across America as well as the establishment of centralized multidistrict litigation. So far, these cases primarily involve state and local governments suing opioid manufacturers and distributors for their roles in the opioid crisis.

No doubt governments have suffered financial losses from the skyrocketing number of overdoses requiring emergency treatment. In North Carolina alone, the cost of opioid-related accidental overdose deaths was estimated at $1.3 billion in 2015.

But if you’re a victim of the opioid epidemic—either through your own addiction or that of a loved one—you may be wondering whether you’ll ever see any benefit from these government lawsuits or whether you can sue directly. After all, the government’s losses are secondary, while you may have lost your job, home, relationships, or loved one.

Will these government lawsuits affect your ability to file your own case? The answer depends both on who might be responsible for the harm and how you could hold them accountable.

Who’s Responsible?

The government cases have focused on drug manufacturers and distributors. They allege that these businesses overzealously marketed opiates for pain treatment, misrepresenting their risks and benefits.

Other lawsuits have gone after doctors, arguing that they negligently prescribed addictive drugs without fully explaining the risks. It’s easy to see why doctors are targets: The Centers for Disease Control and Prevention (CDC) reported that “In 2015, the amount of opioids prescribed was enough for every American to be medicated around the clock for 3 weeks.”

With that kind of rampant overproduction and overuse, and drugs that prove addictive to as many as one person in every four who receives an opioid prescription, this epidemic might have been unavoidable.

How Are These Drug Suppliers Responsible?

In product liability cases, there are three general ways to hold a manufacturer or seller responsible for the injuries to someone who is hurt using a product. That product might have:

• A defective (and dangerous) design. Think of tobacco, for example—if used as intended, it causes serious negative health effects.
• A manufacturing defect. A product that is otherwise safe might have been produced in a way that made it unsafe. For example, if a batch of ice cream is accidentally contaminated with salmonella as it is mixed, that is a manufacturing defect.
• A defect in warnings. A product might be unsafe in certain predictable situations, yet the manufacturer or distributor failed to warn customers about those risks. If a toxic household cleaner didn’t advise users to wear gloves that could qualify as a failure to warn.

The most likely avenue for opioid litigation by individuals is the third, a failure to warn patients of the risks of addiction. But one of the problems with opioid litigation is that each potentially responsible party can blame someone else. Manufacturers and distributors point the finger at doctors who over-prescribed drugs, while doctors argue that they didn’t understand the risks either, given the heavy promotion from pharmaceutical companies.

As an individual, this finger-pointing is especially problematic, because there will always be a finger pointing back at you.

Misuse of Narcotics

In most product liability cases, people are injured using a product in the way it was designed to be used. This is how the tobacco litigation unfolded: people were injured because they were smoking cigarettes, not because they were misusing cigarettes.

Unfortunately, the fallout from opioid abuse generally comes from off-label use, where people start using more of the medication than they were supposed to. Many people become so desperately addicted that they resort to street drugs like heroin to satisfy their physical cravings.

Manufacturers, distributors, and doctors can all argue that the addict is responsible for the destructive effects of opioids. If the patient had stuck to the prescribed dose, none of this would have happened! Governments avoid this problem, because they had no role in that off-label use.

But is it really your fault if you became addicted to opioids? If you’re like most people prescribed these potentially addictive narcotics, you weren’t an addict before you got that prescription. Addiction is a disease; the negative or even illegal behavior that follows is arguably caused by the addiction itself. When the addiction was a foreseeable consequence of the original prescription, are you solely responsible for that conduct?

That’s the question we’re interested in examining. At least some courts are trying to make sure that the government lawsuits don’t impede the right of affected people to sue individually. Expect to see more here about opioid litigation—both government and individual—in the future.

So should you hire an out of state attorney? This is a question many people must answer, including those injured by a failed medical device or a prescription drug. I have had several clients who were initially skeptical about hiring an attorney who practiced 500 or 2,000 miles away. And I get it.

For many types of cases, choosing an attorney in your hometown or in your state is best. Do you need to set up a will with powers of attorney? Ask around and call the good lawyer who lives down the street or across town. Going through a divorce? Have a traffic ticket? Did someone breach a contract? Find someone in your city who comes highly recommended.

But what about product liability? Specifically, what about medical device or prescription drug cases? You need to find the right person to represent you, even if that person practices law in another state or across the country. Let’s look at some pros and cons of hiring an out of state product liability lawyer:

CONS How Do You Know If the Lawyer is Competent?

It’s a good question. In some cases you simply can’t know, or at least you can’t know until it’s too late. Often, if you become aware of a law firm from another state, you stumbled on the firm as a result of aggressive advertising. This does not necessarily mean the firm is not competent, but marketing does not make a firm competent. Many of these firms spend thousands (even millions) on mass marketing and TV commercials and Internet advertising. This is why you found them first. Their primary focus is to “sign you up.” So tread carefully.

You Do Not Get to Meet Face-to-Face

It is usually better to sit down with your attorney. If you hire an attorney who practices 1,500 miles away, this meeting may not be possible. And even if you meet once, you will be prevented by distance from meeting face to face on a regular basis. Something has been lost in our modern age when we rely almost exclusively on our smart phones and our computers to interact. That said, we live in 2017, not 1967. This communication trend will only intensify. And as I suggest below, it may not be the obstacle it seems to be.

The Out of State Lawyer May Not Understand Your Specific State Laws

The out of state lawyer may not understand specific laws that govern cases in your state. For example, for product liability cases, many states have consumer protection statutes that may create a unique cause of action for your injury in your state. How can you be sure a lawyer across the country will know about these state consumer protection laws? The answer: you have to ask your attorney how he or she plans to handle your specific case, including all relevant state law claims.

PROS You Need a Specialist

For medical device and drug cases, you need to find someone who specializes. It could be a disaster for you to choose the kindly man who years ago set up your limited liability company to represent you in a nationwide multidistrict litigation (MDL) involving a failed medical device or drug. The likelihood is that lawyer (whose office may be around the corner from your house) has no idea how to handle a product liability case or even knows what an MDL is. Most of these local lawyers will admit they do not handle these kinds of cases and may refer you to someone else. But some may try to take it forward. And that would be a mistake. You do not want your divorce lawyer to handle your hernia mesh or Xarelto lawsuit, just like you don’t want your podiatrist to operate on your shoulder.

So it is far better to choose a lawyer from another state who has handled fifteen or fifty artificial hip cases than to go with the local person you know, even if that person is very nice and did a great job handling your last real estate closing.

Pro Hace Vice Admission and Online Legal Research

Lawyers are allowed to represent clients in other states through pro hac vice admission. Pro hac vice means “for this turn” or “for this occasion.” It allows me to represent a client in another state for a specific purpose and for a specific case if I complete all the written requirements for this limited admission. It is straightforward and simple.

Beyond that, online legal research services like Westlaw and Lexis allow lawyers to access the complete laws of any state. I can read Oregon appellate court opinions on an Oregon consumer protection statute in seconds. I have virtually the same access to Oregon’s state laws as any Oregon lawyer has (as that Oregon lawyer is most likely using online research services just like I am). In the modern age, information everywhere is at our fingertips.

Proximity is Overrated

It is comforting to imagine that the lawyer who has helped your family in legal matters over the years can also effectively represent you in your medical device case against a multinational corporation. But these cases can be complex, and they can take years to resolve; you do not want to risk your valuable case on the local lawyer who must learn the case as he goes along. Beyond that, we do live in an age with extraordinary ways to communicate: phone, fax, email, text, PDF, FedEx, Skype, Drop Box. I have had phone calls with prospective clients 2,000 miles away, and five minutes after the call ends the client sends me hundreds of pages of medical records in scanned attachments to an email. The truth is, it is easier to handle most cases electronically. In fact virtually every court in the country now has electronic case filing. I regularly file lawsuits in federal courts in California or Ohio or Texas while sitting in my office in Raleigh, North Carolina.

So What Should You Do?

It depends. You may be quite lucky and live down the street from a very good lawyer who focuses his or her law practice on medical device and drug cases. If not, you should not limit your search to your home state. Do your homework on any lawyer, whether in state or out of state. You should read online law firm reviews and online testimonials. You can even ask the prospective lawyer for references from former clients and give those people a call. If the firm has a website or a blog, review the site carefully. Get a sense if the lawyer knows the subject area. Try to discern if the firm website is geared simply to marketing and search engine optimization (SEO) or if the site provides useful information. When you get the retainer agreement from the out of state lawyer, review it carefully and ask any questions about any provision that concerns you. But do not exclude very good lawyers simply because they may not live in your state. Your best option may well be to hire an out of state attorney for your product liability case.

Here’s a scenario: you had hip replacement surgery several years ago. In 2015 the hip began to hurt and cause other problems. You had revision surgery in 2016. While at home one afternoon recovering from the revision surgery, you see seventeen commercials from personal injury law firms asking if you recently had revision surgery following the failure of the [fill in the brand name] artificial hip. If so, lawyers are standing by to assist you with your case.

(At this point, if relevant to your situation please substitute “IVC filter” or “hernia mesh” or “artificial knee” or any number of risky prescription drugs in the scenario above for “artificial hip.”)

So your next thought may be: I should represent myself. This is known as being a pro se litigant. If that is your thought, your next question should be, “what steps should I take to make sure I get a full and fair settlement for my product liability case?” It’s a great question.

The First Thing You Do

In a word: hoard. Collect, gather, organize. Seriously, it is time to start building your case file. You will need to collect everything related to your product liability failure and to your injuries. What is relevant? Well, virtually everything could be relevant to your product failure injury claim, so gather and keep track of and organize everything. When in doubt, identify it and file it away.

Some of the documentation and evidence you will need:

• Medical records. This is rather obvious, but don’t assume just because you obtained the operative notes from your surgeon in the revision surgery that you have all you need. You don’t. You will also want to gather your complete medical history from the surgeon, your primary doctor, your physical therapist, any other medical care providers, even chiropractors and pharmacists. You need to gather your complete medical file. The defense will ask for everything, because one thing they will be searching for is a defense to your claim (e.g., were you rollerblading with your grandchildren the week before your revision surgery, taking a horrific spill?)
• Journal of symptoms/pain. It may sound like overkill, but keeping detailed notes on the onset of pain, the severity of pain, the levels of pain through the day, and other information may well win your case or increase your settlement offer. For example, what if you and your husband were competitive square dancers, and traveled the United States to dance and compete? Then your artificial hip failed, you needed revision surgery, and complications from the revision surgery forced you to retire from square dancing? That scenario sets up a very plausible argument for additional compensation, and it also sets up a loss of consortium claim for your spouse, as he just lost his dance partner.
• Explanted components. I wrote about retrieving the failed medical device from your revision surgery here, so you can read about that process by clicking the link, but it is vitally important that you send a letter to your hospital administrator and to your surgeon prior to the revision surgery so all medical staff are on alert to retain and preserve the explanted components. These components will certainly be needed as evidence as your case advances. And do not let the manufacturer’s sales representative, who may be in the room during your revision surgery, take away the explanted components “for further study.”
• Medical bills. Keep every one of them. From the surgeon, the hospital, receipts from the pharmacist, everything related to your hip surgeries.
• Expense journal. Keep careful track of all expenses: out-of-pocket expenses, co-pays, costs for prescriptions, mileage to and from the university hospital in the next town.
• Tax information. Did you miss two months of work in 2016 following your revision surgery? Did your 2016 W-2 show that you made $6,000.00 less than you made in 2014 and 2015? Make copies of your tax information going back to the time of your original implant surgery, and keep copies for every year through the year of your revision to the present day.
• Health insurance information. Gather all documentation related to any payments or services provided by your health insurance company. Most likely, the health insurer will expect to be reimbursed for payments it made on your behalf relating to a failed medical device or harmful prescription drug. You will eventually have to deal with that health care lien.

Not all of this information will be useful to your case. But in the early stages, you will not know what is useful and what is not (especially if you are working without a lawyer). So if you have any doubt about “relevance,” keep the document or the receipt or the letter. And keep all of the information carefully organized. If you have a receipt, paperclip an explanation (“second prescription for Percocet following my revision surgery”).

A Word of Caution

Let me be clear: I do not recommend representing yourself in a product liability case. There are simply too many things that you can overlook or that can go wrong. The best evidence that you should not represent yourself may be this: the medical device or drug manufacturer really wants you to represent yourself. Unrepresented parties often receive much smaller settlement amounts than do injured people who are represented by competent lawyers. It’s not that product liability lawyers are smarter than other people; it’s simply that a person who does this work day-in-day-out, month-after-month, for years will be more experienced in maneuvering through the dozens of steps it takes to prepare a good product liability case for (1) the best settlement or (2) trial.

But if you take on your product liability case yourself, you should start by building your case file, one document or record at a time. Good luck.

Note: This post is not legal advice. And I don’t have TV commercials.

Communications between pharmaceutical companies and medical device manufacturers and physicians are highly regulated by the federal Food and Drug Administration (FDA), but the agency, as much as it may want to be, does not have the final say in all regulation. These companies have First Amendment commercial free speech rights (though they’re not as broad as the free speech rights individuals have) and there’s a tension between what the FDA wants companies to say, what these companies want to say, and what the courts say the companies can say.

The agency in late August published a notice of public hearing and request for comments concerning manufacturer communications regarding unapproved uses of approved or cleared medical products. The hearing will be held on November 9-10, 2016 in Silver Spring, Maryland, and in case you want to present information you must register by October 19. You could also send in written comments by January 9.

more Off-Label Drug Use

These are very hot button topics. Manufacturers can’t market their products for purposes that are not approved by the FDA (such as if a drug is approved to treat lung cancer only it can’t be marketed to treat malaria), but once approved by the FDA a physician can prescribe it for off label uses. There have been court rulings stating manufacturers can talk truthfully about unapproved uses of their products to physicians. It’s a fine line, and it can easily be abused.

To be approved for a particular use a drug manufacturer must go through a long and expensive process to show the FDA the drug is safe and effective. The danger to patients is that if they take a drug for an unapproved use it may not be safe or effective. It may be a waste of money, it may harm them directly, or the time wasted taking this ineffective drug may allow the disease or condition to worsen, possibly making treatment more difficult or impossible.

On the flip side patients may be suffering from a disease or condition that may be very difficult to treat or is untreatable. A drug approved for one purpose may show promise in clinical trials to battle this hard-to-treat or impossible-to-treat disease. Instead of potentially waiting years for formal approval, these patients may be able to benefit in the present instead of waiting to use it in the future (if they live that long).

FDA Public Hearing

The FDA poses a number of questions on which it would like input from a number of interested parties including manufacturers, health care providers, patient advocates, payors, academics and public interest groups. The topics generally cover:

• How off-label communications impact public health,
• How changes in the health care system result in data on new uses of approved products,
• How to preserve incentives for manufacturers to seek approval for new uses,
• Standards for truthful and non-misleading information provided by manufacturers,
• What the FDA should consider when it monitors and enforces the law on off-label communications by manufacturers, and
• Changes FDA should consider to regulations covering manufacturers’ communications about their products.

Can Congress Help?

Add Congress to the mix. In May the House Committee on Energy and Commerce sent a letter to Health and Human Services Secretary Sylvia Burwell:

• Showing concern that FDA hadn’t clarified its position on permissible manufacturer communications about uses of drugs and devices beyond their approved labeling; and
• Voicing displeasure that HHS apparently was stopping the FDA from issuing guidance or new regulations after a number of court victories for companies and individuals prosecuted for off-label communications about drug and medical devices.

First Amendment commercial speech protections have been interpreted by the courts to allow manufacturers’ truthful and non-misleading speech concerning their products even if that speech includes uses of their products that have not been approved by the FDA. Companies and groups impacted by the issue have encouraged FDA to issue new guidance or change its regulations so its oversight and enforcement actions reflect these court decisions. This announcement and these public hearings are a possible step in that direction.

California is a beautiful, diverse state. It has everything from wide, sandy beaches to snow-capped mountains, deserts, thick forests, wide open spaces and massive cities. It also has laws and a court system that’s seen as friendly to those injured by prescription medications. And after a recent court decision, more people in other states may be heading there to try their product liability cases.

The California Supreme Court issued a decision in August which may encourage people harmed by prescription medications and medical devices from all over the country to file legal actions in the state. At issue is whether the state’s court system has jurisdiction over legal claims by people who’ve never been in California. In cases involving the drug Plavix, the answer was yes.

The eight lawsuits in question have 86 California residents and 592 people from 33 other states as plaintiffs. The defendant, Bristol-Myers Squibb, sought the dismissal of the claims by the 592 non-Californian plaintiffs.

Jurisdiction: The Power of a State to Hear a Legal Dispute

The question facing the court was whether state courts have jurisdiction over legal claims involving these plaintiffs. A key element to any civil case is whether the court has jurisdiction over the parties, whether it has the power to make decisions affecting those involved. The court decided that while the defendant’s “home” was not California, it also concluded that,

• Because of its “extensive contacts with California, encompassing extensive marketing and distribution of Plavix, hundreds of millions of dollars of revenue from Plavix sales, a relationship with a California distributor, substantial research and development facilities, and hundreds of California employees,”
• Jurisdiction over the non-California plaintiffs in state court was appropriate and consistent with Constitutional due process protections because these out of state claims arise from the same alleged conduct and actions which are the basis of those by the California plaintiffs.

The U.S. Constitution requires that government can’t take away property (such as a court ordering Bristol-Myers Squibb to pay plaintiffs’ damages) without due process of law. The defendant argued that having to litigate cases in California which originated in a number of other states is unconstitutional.

Why Do Plaintiffs Prefer California?

Why would 592 people from around the country want their Plavix legal claims litigated in a state where they may have never set foot?

• California state courts have a reputation as being more open to those suing drug makers.
• California’s consumer protection act offers better protections than other state laws.
• These are high stakes lawsuits and plaintiffs may be willing to put up with some practical inconveniences to benefit from any advantages they can get.

Defendant Prefers Other States

The defendant not only would prefer cases in states where plaintiffs would have a harder time proving their cases due to less favorable laws but there would also be practical advantages for Bristol-Myers Squibb:

• Having all these cases in one place saves resources for plaintiffs and their attorneys.
• If multiple cases are heard all over the country the Defendant may be better able to leverage its greater resources to be in a stronger position to defend itself and pressure plaintiffs into agreeing to a lower settlement.

This could be a win-win for plaintiffs. They may not only enjoy a better chance of winning their cases, or favorably settling them, but also take some time to visit California’s many famous sites. After a court room win plaintiffs (and their attorneys) could see Big Sur, Ghirardelli Square or do a tour of Hollywood.

Plavix is a blood thinning drug used prevent blood clots after a recent heart attack or stroke, and in people with certain disorders of the heart or blood vessels. People who have taken the drug have alleged that Plavix has caused internal bleeding, heart attack, stroke, and cerebral hemorrhaging. Lawsuits allege that Bristol-Myers Squibb failed to warn patients and their doctors about the risks of taking the drug.