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Should You Join a Class Action Lawsuit?

We’ve all encountered plenty of advertising by law firms looking for potential plaintiffs in a wide variety of class action lawsuits. Asbestos-related illnesses, defective medical implants, and questionable auto brakes have all had their day in the advertising limelight. These lawsuits bring together many plaintiffs who have suffered similar injuries into a “class” that collectively pursues its claims against a defendant. The aim is to take advantage of scale to go after defendants that have sophisticated legal defenses at their disposal. For the individuals who are the targets of this advertising the question is often whether joining the firm’s class action lawsuit is the right course of action. Unfortunately, many firms aren’t going to give potential clients a complete picture of their options.

Why you might want to join a class action suit

Despite the problems that we examine below, there are plenty of advantages to clients who are part of a class action. Each client needs to examine their own interests with care, because the general rule doesn’t always apply to the specific case. But for many clients, advantages like these are enough to warrant giving the class action route a serious look:

  • The possibility of recovering compensation for a claim that might otherwise be too small to litigate on its own.
  • Economies of scale achievable by grouping claims together. For example, each client’s recovery may be a bit greater thanks to shared costs (but be careful).
  • Having a seat at the table when the defendant dishes out compensation to the class may be the one opportunity for taking part, as defendants who are found liable in class actions can end up in bankruptcy or spinning off their troubled assets to make future litigation more difficult.
  • A cookie-cutter approach to members of the class may mean less investment of time on the part of each individual client, who typically fills out forms and may only have a small number of personal contacts with the firm handling the litigation.

The downsides of class action suits shouldn’t be ignored. By joining the class action an individual usually waives the right to sue on an individual basis, so the choice should be made only after some careful thought. Here are a few common problems for clients in class actions:

  • The individual client has no control over how the litigation is handled, including how it is resolved.
  • Class action suits can take a long time to resolve.
  • Members of a class rarely recover for any unique circumstances that distinguish them from other members of the class. For example, the case probably won’t compensate someone who has endured especially serious pain.
  • The law firm handling the class action may treat its clients like numbers.

Someone who is considering joining a class action lawsuit should think about consulting with an attorney other than the firm running the solicitation ads. The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. If you have questions about joining a class action suit related to an injury you’ve suffered, contact us today for a free attorney consultation. We’re available at 702-388-4476 or contact us through our website.

Falling Furniture Can Seriously Injure Small Children

In recent years a series of recalls has brought to light the serious risk that furniture can pose to small children. Ikea has issued recalls for its Malm series of low-cost dressers, which the company says pose an unreasonable risk of toppling over if a child climbs on them. The recalls came after the eighth child was killed by a dresser in the Malm line falling on top of them.

Take steps to make your home more safe

Everyone, not just parents of small children, should give some consideration to the potential risks of furniture tipping over in their homes. The recalled Ikea dresser is only one example of “tippy” furniture. Another common source of serious injuries is modern TV sets. Modern televisions are quite large, and though they tend to be lighter than obsolete tube-based units they can still cause serious harm if they tip over onto someone.

Fortunately there are simple steps that people can take to make their homes more safe. Securing tippy furniture doesn’t necessarily require making every piece of furniture impossible to move. The key is to ensure that if the furniture does tip over the anchor breaks the fall. Here are some suggestions:

  • Secure furniture and other heavy objects to anchor points, such as shelves that are firmly secured to walls or by using drywall anchors that are rated to handle the weight of the anchored object.
  • Mount flat-screen televisions on the wall instead of using tabletop stands.
  • Make sure to repair damaged furniture, especially if the damage could make the furniture more likely to fall over.
  • Supervise small children who might be prone to climbing bookshelves or open drawers. If necessary, put up gates to restrict access to dangerous rooms.

Pay attention to recalls

One reason the Ikea case is significant is the sheer number of the affected dressers. Because they are inexpensive the dressers are very common, meaning they frequently show up for sale on Craigslist and other informal channels. Even if they are available for free, consumers should not bring these dangerous items into their homes.

If a product poses an unreasonable risk to consumers the manufacturer and marketers of the product may be subject to a products liability lawsuit. Retailers like Ikea try to avoid this liability by issuing recalls, which do not absolve the company of responsibility but can serve to mitigate the company’s risk. Customers who know about a recall but choose to ignore it may be considered to have assumed the risk of injury, and therefore may have difficulty recovering compensation from a company like Ikea if a recalled piece of furniture causes serious injury.

People who keep furniture that poses known risks around their homes may also increase their risk of facing a lawsuit by a guest who is injured by the dangerous furniture. Homeowners can bear legal liability for injuries that occur within the home. Even if a homeowner’s or renter’s insurance policy will assume some of the costs associated with defending against such a claim, this is not a position anyone should want to be in.

Have you been injured by falling furniture?

For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in Las Vegas pursue products liability and personal injury claims. If you have been injured by furniture falling over and you would like to explore pursuing compensation from a manufacturer or other responsible person, we are happy to talk through your options. Call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

Hernia Mesh Litigation Update

In recent years manufacturers of hernia meshes have come under legal scrutiny for complications arising from the implants. Hernia meshes function by adding support beneath and around weakened tissues that have allowed an organ to squeeze through, creating a painful hernia. They can be made from a range of substances, including synthetic fibers and animal tissues, and can have a few different forms. A properly functioning mesh can treat a hernia and prevent it from recurring.

But some patients have discovered that their hernia meshes have not performed as advertised or have had design defects that may be responsible for a range of complications. Plaintiffs in lawsuits against Atrium (maker of the C-QUR mesh) and Ethicon (maker of the Physiomesh) have raised a range of complaints against the manufactures. The problems related to hernia meshes have included pain, infection, migration (implants moving from their original locations), physical collapse of the implant, bowel obstruction, and even damage to nearby tissues and organs. In many cases serious complications require additional surgery.

Hernia mesh lawsuits often raise a number of specific claims that are common in products liability cases involving medical devices. Among other things, the lawsuits often argue that the manufacturers knew about the complications that were possible with their devices but didn’t disclose those risks to patients. Plaintiffs also may argue that the manufacturers failed to follow legally mandated safety processes to ensure that their products performed safely.

Over the years the U.S. Food and Drug Administration has received numerous complaints about complications from hernia mesh implants. Some products have even been recalled for safety reasons, forcing patients to endure new surgeries to replace the recalled mesh.

For patients who have received hernia mesh implants there are a number of important steps to take:

  • Keep an eye on product recalls and news about your implant’s make and model.
  • Notify your doctor about any complications you experience as soon as possible so that any serious problems can be addressed quickly.
  • If you do suffer a serious complication, talk to an attorney as soon as possible to ensure that your legal rights are protected.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured clients recover compensation for cases involving defective products. If you have questions about your legal options to seek compensation for problems associated with a hernia mesh, call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Car Customization and Liability Risk in Nevada

Customizing cars is a hobby almost as old as the automobile itself. The popularity of cable TV shows about custom shops, the availability of consumer aftermarket components, and the deep roots of American car culture combine to make custom cars an increasingly common sight on the road. Although customization is fun, its fans should take a moment to think about how it can affect their legal liability. There are a number of considerations worth bearing in mind.

  • Know your insurer’s position on modifications.

If a custom modification causes an accident an insurer may not be willing to cover the resulting damages unless the insurance policy specifically allows for the custom work. Insurers like to know the details about the vehicles they insure. The vehicle identification number (VIN) provided to the insurer tells it much more than just the make and model of the car: it helps the insurer know exactly what the vehicle is equipped with and how much the vehicle is worth. A customization may alter the vehicle’s value but can also alter its performance. For example, installing an engine enhancer that increases horsepower could make the car more dangerous to drive. An insurer needs to know the kind of risk it is taking on so it can appropriately price its policies.

  • Installing aftermarket parts may complicate products liability protections.

When a consumer is injured as a consequence of design or manufacturing defects in a product the consumer can have the option to sue the manufacturer under a products liability theory. Changes to the stock configuration of the vehicle can free the manufacturer from responsibility. Instead, the manufacturer or installer of the custom part might be responsible. But determining who is at fault in such cases can be tricky, especially if the nature of the problem that caused the accident is difficult to determine.

  • Direct responsibility for unsafe modifications.

A hobbyist who does his or her own customization work often assumes the risk that some part of the work wasn’t completed correctly. Making changes to a car in a way that renders the car unsafe could expose the hobbyist to liability for any resulting injuries. Absent insurance that specifically covers it, the hobbyist could be left bearing all of the cost of the ensuing litigation and compensation to injured parties.

Ask an accident attorney about injuries from custom cars

For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients injured in auto accidents in the Las Vegas area recover compensation. If you have questions about an accident involving a customized car, call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

The Risks of Using Expired Child Car Seats

The Risks of Using Expired Child Car Seats

Child car seats are not designed to last forever. Manufacturers label each of their car seats, as well as related equipment like bases for removable bassinets, with expiration dates past which the car seat should no longer be used. Manufacturers do this for a variety of important reasons. Parents should take expiration dates seriously.

Why do car seats expire?

If a seat were to fail in an accident the potential for catastrophic injury to the child would expose the manufacturer to expensive products liability lawsuits, not to mention a loss of confidence in the marketplace. For that reason, manufacturers of car seats put their products through extensive safety testing before selling them to the public. Manufacturers also pay close attention to how their products perform in the field and will be quick to issue recalls if something isn’t working as intended. That is why registering car seats is recommended by the National Highway Traffic Safety Administration and every manufacturer.

There isn’t a hard and fast rule governing when a car seat has reached its expiration date. Instead, manufacturers determine expirations based on their safety testing procedures and engineering standards. There are a number of reasons why a car seat is given an expiration date:

  • Safety standards are constantly changing, and older seats may no longer be compliant.
  • Materials and safety technology are constantly getting better.
  • Wear and tear can make straps, buckles, and safety padding more prone to breaking in an accident.
  • Manufacturers do not test seats for an indefinite time and will stop evaluating expired seats for faults that might otherwise trigger a recall.

The risks of using an expired car seat

For all the reasons above, using an expired car seat places the child at greater risk of injury. A buckle that’s worn out could snap open in a collision, potentially eliminating the seat’s protections altogether. The seat’s impact foam could be brittle and cracked underneath the external padding, making it less able to absorb shocks. The possibilities are endless.

In the event of an accident an expired car seat that causes injuries could limit the parents’ ability to seek damages from the manufacturer on a products liability theory. In extreme circumstances where the responsible adult knew that the seat was defective but used it anyway, there may even be liability for the person who put the child in the seat. Using a seat that isn’t expired is one way to avoid making a tragic situation worse.

This advice is especially important to keep in mind when considering whether to buy or accept a used car seat from someone else. Most thrift stores don’t take used car seats because the risks are too great, but they are often available for sale or for free through channels like Facebook and Craigslist. Used car seats may have hidden defects, may have been subject to a recall, or may be past their expiration. When it comes to safety equipment, it’s always better to buy new.

GGRM is a Las Vegas car accident law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in auto accident and products liability cases. Contact us if you have questions about how your car seat may affect your legal rights. For a confidential, no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.

Liability for Lending Power Tools

Liability for Lending Power Tools

Lending power tools to neighbors and friends isn’t normally something that one would expect to create legal risk. In some situations, however, someone who has lent power tools can face a lawsuit from someone who is injured by the tool. In many situations such claims can be meritless, but the tool’s lender can end up spending money and time defending against a lawsuit that might have been avoided. There are a few things to consider before lending tools.

How do tools create liability risk?

No matter their safety features, power tools are inherently dangerous. They can cause very serious injuries, like amputations, or even death. There are two principal ways a tool can cause such injuries: through improper use (i.e., attempting to hand-hold a board while cutting it with a circular saw) or as a consequence of inadequate maintenance.

Liability for an injury caused by a power tool will always be a question of facts as well as law. The nature of the injury and the state of mind of the person who was using the tool at the time of the accident will be of central importance. Was the tool being used in an unreasonably dangerous way? Was the person using it under the influence of alcohol or drugs? If the person using it was a minor, was an adult providing adequate supervision?

Amidst these questions a tool’s lender may wonder why anyone would think the lender could be at fault. One answer is that lawyers for an injured person may think of a lawsuit against the lender as a way to force the lender (or the lender’s insurance provider) to settle rather than endure the expense of trial. In other words, the risk isn’t so much that an injured plaintiff can “win” but that the cost of fighting the suit is great enough to force the defendant to pay something.

Avoid practices that assume responsibility for a tool’s performance

The most common way a defendant can end up with liability for an injury is to behave like a business when lending out tools. Asking for a payment in exchange for lending is the clearest way to do this. A plaintiff could also argue that other forms of consideration were given to the lender, such as an in-kind exchange of tools. A plaintiff may even argue that a jar of homemade jam given as a “thank you” gift was in fact a form of payment. If lending, the best course is to not accept any form of payment.

A lender can create an impression of being in the tool-lending business in other ways. Taking out special insurance is an example. So is imposing nonfinancial requirements on the borrower, such as asking them to take out their own insurance.

If you’re going to lend tools, lend only well-maintained tools

A tool’s owner needs to make sure that the tool is free of dangerous defects before lending it out. Problems like a frayed power cord, loose blade guard, or improperly tightened mounting bolt could create heightened risk for anyone using the tool. Especially where the borrower doesn’t know about such dangers, the owner may be responsible if the fault causes injuries.

There are a few other steps that a lender can take:

  • Be sure to include the tool’s instruction manual with the tool.
  • Avoid lending worn out equipment, such as saw blades or drill bits.
  • Never lend “customized” tools, such as those with replacement parts or pieces missing.

When it comes to dangerous equipment, it’s important to bear in mind that a friendship is not necessarily a shield against litigation. The cost of recovery can force an injured person to look for sources of compensation wherever they can be found. If you have been injured by a borrowed tool and you would like to explore your legal options, the law firm of Greenman Goldberg Raby Martinez can help. For a free attorney consultation call today at 702-388-4476. We can also be reached through our contacts page.

Suing for Defective Medical Implants

Suing for Defective Medical Implants

The medical implant industry has seen enormous growth as technology has advanced. Some operations, like joint replacements, have become routine. But sometimes an implant fails to work as advertised, or it contains a significant defect that poses serious risks to the patient’s health. In recent years a number of problems with some hip implants have caused metal fragments to escape into patients’ bodies, leading to serious side effects and large lawsuits. In such cases, an injured patient may be able to recover under a products liability theory. In other cases, where the individual surgeon improperly installed an implant, the patient may be able to recover under a professional negligence theory.

Products liability for medical implants

In an ordinary products liability case the plaintiff must show that the defendant—in the case of medical implants, most likely the manufacturer—negligently designed the product. The difficulty of a plain negligence claim is that the burden rests upon the plaintiff to prove that the defendant was negligent. That can be especially difficult in cases involving highly technical products like medical devices.

If the plaintiff can meet the requirements for a strict products liability claim, the burden shifts to the manufacturer to prove that its product was not defective. A strict liability case requires the plaintiff to make a preliminary showing of five things:

  1. The defendant was the manufacturer or marketer of the product.
  2. The product was defective.
  3. The product’s defect existed when it left the defendant’s possession (in other words, it wasn’t damaged by the surgeon when it was installed).
  4. The plaintiff used the product in a way that was reasonably foreseeable by the defendant.
  5. The defect caused the plaintiff’s damages.

For medical implants, many of these elements will be fairly straightforward. The most challenging one to prove will be the product’s defectiveness. That’s in no small part because the implant is inside the plaintiff’s body. Things can get easier if the implant was removed and the defect discovered after removal. In some cases the product’s defect may come to light as many other patients begin to suffer similar problems.

Professional negligence cases against surgeons and others

In some situations the manufacturer of an implant is not responsible, or at least not solely responsible, for the patient’s injury. In cases were the installing surgeon failed to follow proper procedures or made mistakes, the patient may bring suit for professional negligence (more popularly referred to as “medical malpractice”).

A professional negligence claim is based on the idea that the defendant doctor failed to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by a similarly trained and experienced professional. NRS 41A.015. Among other things, the plaintiff in such a case must provide the written affidavit of a doctor who practices in a similar field to the defendant, attesting to the defendant’s negligence.

GGRM is a Las Vegas personal injury law firm

Injuries from medical implants can be painful and expensive. Working with a local law firm to resolve the issue is important for anyone suffering from implant problems. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented personal injury clients in the Las Vegas area. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

How Product Recalls Affect Manufacturer Liability

How Product Recalls Affect Manufacturer Liability

Thousands of consumer goods get recalled every year, from tainted lettuce to defective cars. Sometimes a manufacturer voluntarily issues a recall after discovering a problem that makes their product unsafe. Other times a regulatory agency, such as the U.S. Food and Drug Administration or the U.S. Consumer Product Safety Commission, will take legal action to compel a manufacturer to issue a recall. Someone who is injured by a recalled product continues to have legal recourse against the manufacturer for products liability.

A product recall is not a “get out of jail free” card

Nevada’s products liability law provides that anyone involved in the creation or marketing of a dangerously defective product may be held legally responsible for any injuries the defect causes. NRS 695E.090. This captures not only the product’s manufacturer, but also its designer, importer, distributor, and marketer. One reason for this broad scope is to ensure that injured consumers have the best opportunity to recover for their damages, without needing to target only one entity. It then falls to the parties involved in the defective product’s distribution chain to work out amongst themselves who is ultimately responsible. Businesses involved in making or marketing consumer goods typically carry insurance to cover products liability claims.

An injured plaintiff can sue on two different theories:

  1. Negligence. The plaintiff must show that the defendant failed to take reasonable care to ensure the product was reasonably safe.
  2. Strict products liability. If sufficient facts are available, the plaintiff can seek to shift the burden of proof to the defendant by showing that the defect was present in the product when it left the defendant’s possession, the plaintiff used the product in a foreseeable way, and the defect caused the plaintiff’s injury. Nev. J.I. 7.02.

A product recall doesn’t absolve the parties in the chain of liability from responsibility. In fact, it can be a potentially powerful piece of evidence in a trial. The fact a product was recalled can be used to establish that the product was, in fact, defective. If marketers and distributors don’t pay attention to the recall they may be committing a serious act of negligence.

To ensure fairness, a plaintiff must be able to show that the defect was present in the specific item that caused the injury. For example, a manufacturer of electric blankets issues a recall for a blanket due to a short in its power switch that creates a fire risk. If the plaintiff was injured by a fire caused by the same short, chances are good that a court will allow the fact of the recall to be presented to a jury. But if the plaintiff was injured by a different problem with the blanket (such as a short within the sheet itself), the recall probably isn’t relevant.

Ignoring a recall and assuming the risk of injury

Consumers who become aware of a product recall should comply with them to avoid injury. Failing to heed a recall is not just dangerous, but also potentially hands potential defendants a legal argument that the plaintiff assumed the risk of injury by continuing to use the product. The weight of an assumption of risk defense will depend on the facts. A plaintiff injured by a burning electric blanket may be assuming the risk of injury if she ignored multiple recall notices and a news story about the issue.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area in products liability cases. If you have been injured by a defective product and have questions about your legal options, our attorneys can help. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Unintended Acceleration Cases in Nevada

Unintended Acceleration Cases in Nevada

Modern cars are enormously sophisticated machines, but they still can have major mechanical problems. One curious issue that is sometimes blamed for causing accidents is unintended acceleration, in which a car lurches forward seemingly without the driver deliberately touching the gas pedal. Thanks to modern diagnostics systems it’s possible to analyze the root cause of acceleration after an accident. People injured in accidents involving unintended acceleration may have the option of suing the car manufacturer.

Potential causes of unintended acceleration

The controversy surrounding the Toyota Prius is the most famous example of unintended acceleration. About ten years ago Toyota responded to numerous claims that its Prius models were suddenly accelerating by arguing that the issue was being caused by slipping floor mats. But Toyota later admitted that they’d also discovered that some of its accelerator pedals were prone to getting stuck in a partially depressed position. Toyota issued a recall for certain car models and paid $1.2 billion to avoid criminal prosecution for its efforts to conceal the real cause of the problem.

Sticky accelerators and badly fitted floor mats are not the only potential causes of unintended acceleration. The complexity of modern car systems exposes them to potential electronic faults that could cause the problem as well. Researchers have identified problems that can arise due to CPU failures caused by voltage spikes. Faulty cruise control systems can also be responsible.

Nevada’s products liability law and unintended acceleration

The chief aim of products liability law is to encourage manufacturers and marketers of consumer goods to make their products safe. It does this by giving injured plaintiffs an advantage in the courtroom, by placing the legal burden upon the manufacturer to show that it should not be held liable. This is called strict products liability, which in Nevada requires the plaintiff to show that each of the following things is true (Nev. J.I. 7.02):

  1. The defendant was the manufacturer or marketer of the product. In addition to the auto manufacturer, the plaintiff might also sue the dealer and other parties that could have had a role in introducing the defect that caused the unintended acceleration.
  2. The product was defective. Proving defects in a car that was totaled during an accident may require expert analysis, especially in extreme cases where the car’s “black box” memory was destroyed.
  3. The product’s defect existed when it left the defendant’s possession. A third-party modification to the car may relieve the manufacturer of responsibility under a strict products liability theory. For example, if a dealer’s mechanic makes adjustments to an accelerator system the fault may lie with the dealer, though the auto manufacturer may have responsibility under other theories, including negligence.
  4. The plaintiff used the product in a way that was reasonably foreseeable by the defendant. Products liability cases often involve novel uses of ordinary objects. Even a novel use can be “foreseeable” within the meaning of this element, but such cases require careful argumentation.
  5. The defect caused the plaintiff’s damages. Causation can often be a focus in litigation. For example, if before the accident the unintended acceleration had stopped, but the driver hadn’t hit the brakes, the driver’s negligence may be an intervening factor.

As the brief comments above show, establishing a case for strict products liability can be complicated even despite the law’s aim of helping injured plaintiffs recover compensation. For over 45 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in personal injury cases. If you have been injured in an unintended acceleration accident, please reach out to us today for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Branded Pharmaceutical Company Liability for Generics: The Zofran Case

Branded Pharmaceutical Company Liability for Generics: The Zofran Case

Despite intense regulation by federal agencies and rigorous testing by the medical and pharmaceutical industries, drugs sometimes cause unexpected side effects. When side effects are severe enough to cause long-term health problems, the affected patients may want to sue the drug manufacturer for compensation. These complex cases involve many moving parts, especially if the drug involved was a generic equivalent of a branded drug. A case last year in Massachusetts highlighted the challenges faced by plaintiffs.

Zofran is allegedly linked to birth defects

Pharmaceuticals manufacturer GlaxoSmithKline (GSK) produces Zofran (generically, Ondansetron), an anti-nausea medication. One of the common uses of Zofran is to treat morning sickness in pregnant women. Although the U.S. Food and Drug Administration has approved Zofran for use treating nausea generally, it has not approved it as a treatment for morning sickness.

Since 2015 a wave of lawsuits has been brought against GSK arguing that Zofran causes birth defects such as heart problems, cleft palates, and skull deformities. Hundreds of plaintiffs have filed suit arguing that GSK knew as early as 1992 that Zofran posed a risk of defects, misrepresented and suppressed that risk, and should be held liable for the resulting injuries. Readers should bear in mind that the science behind this claim is not clear: a 2016 study published by UCLA found no link between Zofran use and birth defects.

Is GSK responsible for generic forms of Zofran?

One of the interesting legal questions raised by the Zofran litigation is whether GSK can be sued for injuries allegedly caused by generic versions of its drugs. Such lawsuits face complex hurdles. Generic drug manufacturers are exempt from state-law tort liability. But the branded manufacturer has no control over the manufacture or sale of generic equivalents of its medicines, which can leave injured plaintiffs without legal recourse, at least under state products liability theories. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 624 (2011).

In the multidistrict litigation case In re Zofran Ondansetron Prods. Liab. Litig., 261 F. Supp. 3d 62 (D. Mass. 2017), numerous plaintiffs argued that GSK is responsible for injuries by the generic equivalent of Zofran because GSK created a market for Zofran as a treatment for morning sickness when the FDA had not approved that use and GSK allegedly knew of the risk of birth defects. A central issue in the case is a federal law requirement that generic drugs carry the same FDA-approved label as their branded equivalent. Therefore, the plaintiffs argued, the generic manufacturer could do nothing to remedy GSK’s failure to include warnings about potential side-effects for pregnant women.

The court in In re Zofran granted GSK’s motion for summary judgment, citing a long string of precedent holding that branded manufacturers cannot be held liable for injuries caused by generic equivalents of their products. (Among the cases cited by the court was a case involving similar issues under Nevada law, Moretti v. Wyeth, Inc., 579 Fed. Appx. 563, 565 (9th Cir. 2014)). The court also refused the plaintiffs’ request to certify a question of law to the plaintiffs’ various home state courts, which would have asked them to opine on whether a brand-name manufacturer was immune from liability under state misrepresentation laws for creating a market for an unapproved use of its drug. The court’s reasoning again highlights the problem plaintiffs face in these cases: because the question assumed facts that were not in evidence (misrepresentations by GSK created a market, resulting in injuries) the court concluded that certification was not appropriate, even where state law permitted it.

GGRM is a Las Vegas personal injury law firm

The Zofran litigation highlights challenges faced by people who are injured by prescription drugs. When a medicine causes a serious problem it’s important to consult with an attorney to understand what may be required to pursue compensation from the drug manufacturer. The law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area for over 45 years. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.