Most of the cases we defend involve claims of inadequate warnings. What makes a warning inadequate? Falsehood is the first thing that comes to mind. But the Pontius Pilate question of “What is truth?” continues to vex. We have seen very few drug or device labels uttering an affirmative misrepresentation. More often the complaint is about what the warning did not say, not what it did say. If John Lennon sang “Gimme Some Truth,” plaintiff lawyers sing (off-key) “gimme some more truth.” To our ears, it sounds like “gimme some more money.” Whatever. Plaintiffs allege that the product label did not disclose all of the serious side effects, or did not recite them with sufficient detail and drama. There is a hierarchy of warning inadequacy. A warning can ‘fail’ for any of various reasons. You pays your money and you takes your choice. Did the warning:
- Fail to grab attention?
- Fail to persuade?
- Fail to change action?
The last test is a slam dunk. If the consumer heeded the warning, we wouldn’t be enjoying each other’s company in the courtroom. There would be no complaint. Probably.
The first warnings we remember seeing were on cigarette packs. The United States was the first country to require such warnings. Back in 1966, the sides of cigarette packs were adorned with the following: “Caution: Cigarette smoking may be hazardous to your health.” That warning did not include the word “warning.” Change came a couple of years later. In 1970, packs reminded us that the Surgeon General had determined that cigarettes were “dangerous.” Still later, smokers were treated to rotating warnings. Some packs warned of cancer, emphysema, heart disease, and pregnancy complications. Some stated that cigarette smoke contains carbon monoxide. Some suggested that quitting now could improve one’s health. And some warned pregnant smokers of possible fetal injury, premature birth, and low birth weight. We heard that one fellow filed a lawsuit alleging that cigarettes had caused his lung cancer, while also claiming he had not been adequately warned, because he had made a point of buying only the packs that talked about pregnancy complications. That case proved at least two things: (a) no matter what, some people will smoke, and (b) no matter what, some people will file silly lawsuits.
Some lawsuits are not merely silly but actually unhealthful for the plaintiffs. There is a small minority of plaintiff lawyers out there (we certainly hope it’s quite small) who are not content to troll for injured plaintiffs, but go so far as to render rotten medical advice. They tell people to stop taking a medicine that had been prescribed by a doctor. Or they tell people to undergo surgeries to remove medical devices, even when the person’s treating doctor wholly disagrees with that course of action. Bad law gins up bad medicine. Those lawyers and any doctors they enlist in these efforts should, by all rights, be impleaded into the lawsuit, since they are the ones who caused the injuries. Further, while there are plenty of unscrupulous, trigger-happy plaintiff lawyers out there who lob RICO counts into their complaints for strictly in terrorem purposes, what is one to make of a scheme where lawyers and doctors use interstate means of transmission to disseminate fraudulent statements that cause physical and financial injuries? Or maybe states can create clear causes of action against lawyers who caused physical injuries to their clients via horrible advice. We’d probably see a subset of plaintiff lawyers who would specialize in such cases, ala med-mal, legal-mal practice areas. We could end up seeing the most enjoyable plaintiff lawyer vs. plaintiff lawyer battles outside of fee disputes.
You have probably been hearing a lot lately from Congressman Bob Goodlatte (R-Va) on legal reform. He played a role in the recent class/mass action reform bill that passed the House of Representatives. Recently he sent a series of letters urging state bar associations to curb misleading and even dangerous attorney advertisements regarding lawsuits centered around pharmaceuticals. Specifically, Representative Goodlatte asked for implementation of a “requirement that attorney commercials which may cause patients to discontinue medically necessary medications have appropriate warnings that patients should not discontinue medications without seeking the advice of their physician.” You can read Rep. Goodlatte’s press release on this issue here. His letter cited a report by the American Medical Association (AMA), which found that patients were more likely to discontinue the use of prescribed FDA approved pharmaceuticals after seeing television advertisements that “emphasize side effects while ignoring the benefits or the fact that the medication is FDA approved.” The AMA concluded that such advertisements are “designed to frighten patients” and “jeopardize patient care”. An additional letter by the Congressman calls on groups that air such advertisements to answer questions regarding their practices, and what is being done with the information gathered from potential clients.
At the end of his press release, Representative Goodlatte observed that the “legal profession, which prides itself on the ability to self-regulate” should take action to promote better practices when airing such advertisements because lives depend on the of patients continuing to follow the advice of their physicians. There is much to be said for self-regulation, as opposed to government regulation where there are thorny First Amendment concerns. (What Goodlatte recommends might not run afoul of the First Amendment at all. Aren’t we talking about the type of additional disclaimers required in all sorts of statements?) The issue is whether such self-regulation is forthcoming. Even aside from regulation, one is reminded of what the great lawyer, Joseph Welch, said to Sen. McCarthy: “At long last, have you no sense of decency?” Barring some exercise of that sense of decency, and some exercise of restraint, Representative Goodlatte’s statements might signal a new day when plaintiff lawyers who conjure up cases by hurting their clients might end up paying a price. Those lawyers will not be able to say they weren’t warned.