Could class action lawsuits arising from Digitek lead attorneys into new legal territory? As reported by Law.com:
In contrast to past pharmaceutical tort litigation, plaintiffs lawyers aren’t alleging that a company’s “failure to warn” about possible risks of a drug caused injuries and deaths. In recent years, those arguments have been challenged in court, where several judges have sided with manufacturers in upholding federal pre-emption, or the concept that U.S. Food and Drug Administration regulations override state liability claims. Lawyers anticipate that the new defective-product claims could duck the federal pre-emption argument altogether, increasing the chances of success for more plaintiffs.
As noted by one lawyer who has filed lawsuits on behalf of Digitek, Digitek has “been around for a long time. And it’s a drug that has very good therapeutic reasons for its use. But it’s a drug [for which] this company had very poor quality assurance in place.” It is for this reason Digitek lawsuits are NOT based on failure to warn but instead are based on being a defective product. A defective product case is not subject to preemption arguments.
In my opinion, the United States Supreme Court’s decision in Riegel v. Medtronic, 128 S. Ct. 999 (2008) involving preemption could be the worst decision the high court has set forth in many, many years. Here’s to hoping defective product claims help injured persons achieve the justice they deserve from drug companies.
For more information on Digitek, visit our page on Digitek.
