The Pharmaceutical Industry Under Torts
When we walk into our pharmacies to pick up prescription drugs, we follow the label accordingly, taking note of the dosage and side effects. However, enshrining trust within the pharmaceutical companies that administer drugs themselves, have oftentimes led to negative results, from increased illness or even death. If there are defects in the drugs themselves, pharmaceutical industries can risk harm to every consumer on the medication. Through the past few years, there has been a clear question regarding the ethics of defected drugs on the market and the moral responsibility of pharmaceutical companies and several other actors to uphold the standard of public health safety for every American.
If a large population of patients receives a drug with defects or unintended side effects that result in illness or death, it is not uncommon to see the emergence of a mass tort lawsuit. When mass tort law occurs, “cases of the various victims…are combined and heard by one judge, allowing the victims to pool their resources and collect similar evidence.” In today’s litigious environment, there has been an increase in pharmaceutical torts. As of January 2020, there have been around 15,000 lawsuits against Johnson & Johnson, just for talcum powder, which has a proven link to deadly cancers and asbestos. In pharmaceutical torts, each plaintiff’s case is individually considered on the basis of their illness or injury, separate from the entire group. By combining individual cases to push for collective legal action, mass tort litigation reroutes class-action suits and becomes a powerful tool for consumers of harmful medications.
The relationship between science and the law becomes more intimate through legal action with respect to precise data and reliable research. Mass tort litigation is used to aid regulatory action within a pharmaceutical industry, and improvements to individual well-being; where the public health system as a whole is prioritized and used as a check under mass tort litigation. Additionally, the legal system in this case is responsible to uphold the health of the public and hold the pharmaceutical industries, at large, accountable for the harmful drugs going into the ether. Unfortunately, these are very high standards for the legal system as it is simultaneously battling attorneys who seek to benefit from mass damage collection and the extreme preventative measures that companies take to exhaust liability claims, such as concealing scientific publications from the public that highlight the negative side effects of a drug going on the market. However, the rise of technology and the media has completely transformed pharmaceutical mass tort litigation by expanding the knowledge on drugs and data through protective measures, ensuring scientific knowledge and pharmaceutical data is accessible to the public.
With the rise of technology and media, attorneys have promulgated litigation through advertisements on pharmaceutical companies. These advertisements have been widely spread, not just through television, but through social media sites as well. These hits on pharmaceutical industries are used to push plaintiffs into litigation which snowballs into mass tort but have also been used for solicitous purposes for monetary gain. This back and forth has led plaintiffs, and patients in general, to be confused on who they should believe when taking their medication, which has been brought to the attention of the House Subcommittee on the Constitution and Civil Justice in the past couple of years. In 2017, Subcommittee chair Steve King reported from a survey that, “found three-quarters of Americans have seen ads by law firms about pharmaceutical lawsuits in the last year. And one-in-four people who see a trial lawyer ad about a medicine they currently take say they would immediately stop taking the medicine without consulting their doctor.” This type of fear-mongering ultimately pushes patients to listen to the counsel of the attorney rather than consulting a licensed doctor. Drug injury ads are dangerous in this way because withdrawing from dosages when on certain medications can be even more harmful. The shift to social media advertisements has led to the increase of drug injury advertisements and thus more harmful side effects to medication. Because these dangerous ads last 20 seconds or fewer, they draw the attention of more people in a short amount of time. This has brought immediate concern as attorneys are now interfering with public health at a multitude of levels. Such technological persuasion and solicitous usage have not since changed since the 2017 hearing, and many attorneys continue to push litigation onto patients.
In the case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, et. al (2017), plaintiffs alleged that a pharmaceutical drug, Plavix, sold by Bristol-Myers Squibb Company (BMS), had severe damages to the health and well-being. BMS advertised Plavix as a safe blood thinner that would prevent clotting or any heart problems, however, plaintiffs had instances of internal bleeding, thrombocytopenic purpura, and in some instances, death. BMS admitted to negligence for having poor advertisements on the health consequences but argued for personal jurisdiction, so they would not be liable for any California resident who had taken the drug where they were headquartered. This case revolved around the Constitution’s Due Process clause where BMS had to prove a connection between the issue with Plavix and all the consumers in all regions to establish general jurisdiction. However, in an 8-1 decision, the Supreme Court held that the relevant plaintiffs, in this case, resided outside of California, which ties this back to constitutional limits and potential implications on other legal aspects. This example of drug-to-consumer advertisements shows that the dangers of pharmaceutical advertisements produced a dangerous outcome for plaintiffs.
Big Pharma and litigators are perceived authority figures on the question of efficacy and safety on the drugs, but in light of the current pandemic, the executive has been advocating for an unfounded “cure” to the coronavirus. On March 19, 2020, President Donald Trump first publicly announced that hydroxychloroquine, an immunosuppressive drug, would be a potential cure for the coronavirus which had already killed 52 people in the United States at that point. According to a study testing hydroxychloroquine on veterans with COVID-19 by the University of South Carolina and the Dorn Research Institute, nearly a month after the first endorsement of hydroxychloroquine, patients that took hydroxychloroquine had higher death rates. While the executive still advocates for hydroxychloroquine, doctors and health professionals warn that there is no proven effect by taking hydroxychloroquine, and it can even become more harmful to take. The use of hydroxychloroquine has been staunchly argued against by Dr. Anthony Fauci, and several credible physicians, but social media has pushed for the use of this drug especially onto Trump’s supporters. The dangers of drug injury advertisements have proven to be dangerous to patients without the consultation of a health professional, but when the advertiser is the President of the United States, it is even more dangerous to listen to medical advice without the consultation of a health professional.
Rapid expansion within technology and media has filtered many aspects of the world, including the pharmaceutical and medical sectors. It has especially transformed pharmaceutical mass tort litigation. Pharmaceutical and medical companies must evaluate the possibility of risks of liability claims. It is also imperative to understand the other actors that play a part in mass tort litigation, such as attorneys and their deceptive use of technology as a form to solicit companies in public. The legal system has been taxed with the burden of upholding public health standards while battling attorneys and pharmaceutical industries alike. In the legal scope, the government is obligated to ensure advertisements that could potentially harm the public safety are not deceptive. The Federal Trade Commission ensured close monitorization in 2019 of drug injury ads. However, the executive has taken its own stance on the use of hydroxychloroquine as a potential cure for the coronavirus, which can be even more dangerous with the polarized climate politics is currently in. Ethically, these actors should be ensuring public safety through collaborations with medical professionals before administering any harmful information. Ultimately, with this new age of technology, it is crucial that pharmaceutical companies test drugs accurately and efficiently and accurately report data and side effects, to avoid a slew of future illnesses and injuries, and the actors in the political and legal realm to uphold that standard of public health safety.
