NEVER (SEE) YOUR CASE THE SAME WAY AGAIN

A Roadmap for Defending an Industry: Five Common Juror Misconceptions in Pharmaceutical Product Liability Cases

For plaintiffs’ attorneys, the major hurdle in a pharmaceutical product liability case is fairly well defined. Commonly, they must establish that the drug at issue was a contributing cause to their client’s injury.

For defense attorneys, the landscape is muddier. In order to be successful in this type of case, their challenge involves confronting and correcting jurors’ multiple misconceptions regarding drugs and the pharmaceutical industry itself. 

So vast and ingrained are the prejudicial beliefs about the industry that voir dire alone is unlikely to eliminate all the jurors who hold such intractable misconceptions. That said, trials are inevitable and the stakes high. If some juror prejudice is unavoidable, how then should counsel begin to overcome such a significant handicap?

One way is by getting down to specifics. If a general plea for fairness won’t work, defense lawyers can instead identify the most important specific misconceptions about the pharmaceutical industry and, as appropriate during the course of the trial, attack these fundamental biases that may singly or in combination lead to an adverse decision.     

Here we can at least begin to draw up a roadmap for pharmaceutical case defense by identifying five of the principal misconceptions and suggesting a few strategies to neutralize those liabilities.

1. All Drugs Must Be 100 Percent Safe.

Despite the laundry list of risk advisories that accompanies drug advertisements and television commercials, many jurors persist in thinking that a drug company seriously errs when it markets a medication that has any risk to the user. The thinking here is that even one injury from a drug is “one too many” and the company should be severely penalized for any occurrence. This belief sometimes extends so far that, even if the injury results from misuse of the drug by the plaintiff, the juror still wants to penalize the company that unwittingly provided the dangerous weapon.

In order to effectively deal with this misconception, the defense attorney must unequivocally present the idea that all drugs have benefits and risks. The very fact that a drug has been allowed into the market means that the FDA has determined – not that it is absolutely safe under all conditions – but that its benefits outweigh the risks.

In order to drive home this simple but essential truth, the defense attorney should identify examples of commonly used beneficial medications that have potentially serious side effects.  Jurors can be advised, for example, that in rare cases aspirin causes Reye’s syndrome. As a concluding point, the defense can simply state that, if a 100 percent safety criterion were in force, no drug would be on the market. This reminder will likely play all the more persuasively if presented to the jury after it has heard the example of aspirin or some similarly commonplace drug product that might have rare side effects.

2. All Potential Drug Risks Must Be Completely Known Before Release.

Many jurors react very negatively if the plaintiff experienced a side effect of a medication that is not listed in a warning on the drug’s label. The belief here is that all possible side effects, no matter how rare, should be identified before the drug is allowed to be released. Some jurors go so far as to theorize that, because manufacturers do research on their medications before they’re released, they must know all along about all side effects, but they don’t tell the FDA. Jurors prone to any such conspiratorial theory offer a particularly good example of why it’s important to keep the defense argument as specific as possible. Even if they continue harboring such powerful and irrational distrust, they might be swayed by a few basic irrefutable facts.