Two New Bills Slip through Congress Giving Big Pharma Unlimited Power and Zero Accountability*
By Lisa Bloomquist
If you’re hurt by a pharmaceutical, you can sue the company that made the drug, and be compensated for your losses, right?
Most people assume that is the way the justice system works, but the reality is that it’s difficult, and in many cases impossible, for victims of pharmaceutical companies (and other big corporations/industries) to gain compensation or justice.
There are many aspects of the current U.S. legal system that make getting compensation and justice for injuries caused by pharmaceutical drugs difficult, and there are two bills that are currently going through the U.S. House of Representatives (H.R. 985, the 2017 Fairness in Class Action Litigation Act and H.R. 1215, the Protecting Access to Care Act of 2017) that will make justice for victims of pharmaceuticals nearly impossible.
They Can Hurt You as Long as You Were Warned
Currently, people who are hurt by pharmaceuticals are in a legal catch-22 because victims of pharmaceuticals can’t sue drug companies for hurting them, they can only sue for failure to warn. So, if a pharmaceutical drug gives you cancer, you can’t sue the company that made the drug for the fact that it gave you cancer, you can only sue them for failing to warn you IF the warning label doesn’t contain information about the drug causing cancer. If the warning label says that the drug can cause cancer, you can’t sue, because “you were warned.” Even if you were never given the drug warning label, you “were warned” as far as the justice system is concerned — because the learned intermediary doctrine states that pharmaceutical manufacturers aren’t obligated to inform you, the consumer/patient/victim, they’re only obligated to inform the doctor, the “learned intermediary,” about the potential harm that the drug can cause.
If a pharmaceutical drug causes your cancer, but that isn’t noted on the pharmaceutical warning label, you’re not much better off, because proving that a pharmaceutical caused your cancer is near-impossible for a regular person. The only situation in which a person can sue a pharmaceutical drug company for the harm done by their products is when a drug warning label changes. If a pharmaceutical drug warning label changes, there is enough evidence that the drug did the harm, but people who took the drug prior to the warning label change weren’t properly warned, so there is a short window of opportunity for victims to sue and gain recourse/justice for the harm done to them. The inherently dangerous nature of pharmaceutical drugs, the warning labels that accompany them, and the way our justice system is structured, make it so that the vast majority of those who suffer harm from pharmaceutical drugs are unable to sue the maker of the drug(s) that hurt them.
Victims of Generic Pharmaceuticals Can’t Sue
On top of that, victims of generic pharmaceuticals are completely unable to sue the manufacturer of the pharmaceutical drug that hurt them. This is an absurd situation that is an extreme miscarriage of justice. You can read more about the inability of victims to sue makers of generic pharmaceuticals in the New York Times article “In 5-4 Ruling, Justices Say Generic Makers Are Not Liable for Design of Drugs” and the posts on HormonesMatter.com, “SCOTUS Decision on Medication Safety: No Product Liability” and “Hurt by a Generic Drug? Victims have no Recourse unless the FDA Changes Rules.” Basically, if you are hurt by a generic drug, you have no recourse because cannot sue a generic drug manufacturer. The FDA has the power to change this situation, but they have failed to do so over the 3+ years that they have been deliberating how they might address it.
A poignant example of how this horrible rule can keep people from gaining justice is the tragic death of Chris Dannelly. Chris Dannelly was killed by generic Levaquin — levofloxacin — and neither his widow nor his children can sue the maker of the generic levofloxacin that killed him. Here is a newscast about Chris Dannelly’s death from levofloxacin:
Justice for the Rich
Justice is supposed to be blind, but your chances of getting compensated for your losses are significantly higher if you are wealthy. It is difficult to get a lawyer to take your medical harm case if the damages that you may be compensated for are less than a million dollars. According to the ProPublica article “Patient Harm: When An Attorney Won’t Take Your Case”:
But lawyers may have to invest $50,000 or more to pursue a case, and they usually only get paid if they win or settle. The payout is determined largely by economic damages – lost earnings, medical bills and future costs caused by the injury. Those who don’t earn big paychecks – including children, the elderly and stay-at-home-moms – are the least likely to find an attorney, studies show.
If you can’t show that you suffered from millions of dollars in lost wages, and other damages, lawyers won’t take your case because it doesn’t make economic sense for them to do so. And, if you can’t find a lawyer to take your case, you cannot get justice.
In order to increase the potential payout of a lawsuit, to make it worth the upfront investment of a lawyers’ time, money, and effort, plaintiffs are lumped together in class-action lawsuits. Class-action lawsuits aren’t ideal, but they’re the only form of justice that most victims of pharmaceutical companies have, and, frankly, they’re better than nothing. Class-action lawsuits are often the only way that victims of pharmaceutical drugs can gain justice, and class-action lawsuits are currently under attack by the U.S. Congress.
H.R. 985 – Making Justice Even More Difficult for Victims
H.R. 985, the 2017 Fairness in Class Action Litigation Act, aims to put more obstacles in the way of plaintiffs/victims who seek justice. This justice-reform bill is a gift to the pharmaceutical industry, and other big corporations that hurt citizens (like big banks, big agriculture, big chemical, big oil etc.) from Congress men and women who receive millions of dollars in donations from those industries.
One of the most potentially damaging aspects of H.R. 985 is a provision that states that each plaintiff in a class-action lawsuit must “affirmatively demonstrate” that they “suffered the same type and scope of injury as the named class representative.” This means that all plaintiffs in a class-action lawsuit must have exactly the same injury. This provision will keep a large number of pharmaceutical class-action lawsuits from moving forward, and will rob the people who could otherwise be involved in a class-action lawsuit of justice.
Here is an example of how this provision in H.R. 985 could hurt people: The warning labels for fluoroquinolone antibiotics, including Cipro, Levaquin, and Avelox, have recently been updated to note that permanent peripheral neuropathy is a potential effect of those drugs. This opened the door to lawsuits, and many law firms are taking cases for those suffering from peripheral neuropathy caused by fluoroquinolones. Peripheral neuropathy is a broad diagnosis though, and it presents in many different ways. Some people with peripheral neuropathy may have pain that is debilitating, while others may have twitching muscles, others may experience numbness, others may have reduced balance or coordination, and others may have autonomic nervous system dysfunction that causes loss of digestive motility. H.R. 985 could make it so that those plaintiffs cannot join together in a class-action lawsuit because their symptoms present differently, and, as noted above, without the possibility of a class-action lawsuit, there is no possibility for justice for many victims of pharmaceutical industry crimes.
In “House Judiciary Committee Passes H.R. 985: Fairness in Class Action Litigation” the following example is given to illustrate how this provision could hurt those trying to sue a bank: “So if your bank steals a $5 overdraft fee, and $10 from your neighbor, a class action could be dismissed because your injuries were different. Even if you file a lawsuit and get your $5 back, your friend would not.”
This provision of H.B. 985 would keep cases like that of the people of Hinkley, California versus Pacific Gas & Electric (PG&E), that was featured in the movie Erin Brockovich, from moving forward. The people of Hinkley “suffered cancers, mis carriages and digestive and skin disorders as a result of the company (PG&E) dumping contaminated waste into ponds that seeped into the town’s drinking water.” If they weren’t allowed to join together in a class-action lawsuit because they didn’t have the “same type and scope of injury as the named class representative,” they wouldn’t be able to gain justice.
When people are exposed to endocrine disrupting chemicals (whether those be industrial pollutants, pharmaceuticals, pesticides, herbicides, etc.), the health maladies that result vary from person to person. Some people may suffer from infertility, while others get cancer, and others develop an autoimmune disease. (For more information about the health effects of endocrine disrupting chemicals, read Our Stolen Future: Are We Threatening Our Fertility, Intelligence, and Survival?–A Scientific Detective Story by Theo Colborn, Dianne Dumanoski, and John Peterson Myers.) The people in the industries producing endocrine-disrupting pollutants know this, and they lobby accordingly — hence this provision in H.B. 985.
If H.B. 985 passes into law with the provision that all plaintiffs must “affirmatively demonstrate” that they “suffered the same type and scope of injury as the named class representative,” bulldog lawyers hired by big pharma, big ag, big chemical, big oil, and other profit-at-all-cost motivated corporations, will tear apart all attempts of plaintiffs/citizens/victims to join together to fight for justice.
Plaintiff Lawyers Won’t Take Cases if They Can’t Get Paid
Another way that H.B. 985 will keep victims of corporate crimes from gaining justice is by limiting the amount of money attorneys can receive as compensation for representing class-action plaintiffs. This will interfere with the attorney/client contract and it will disincentivize attorneys from taking cases of those who have been victimized by big corporations.
In “Fairness in Class Action Litigation Act of 2017: The Corporate Sweetheart Deal,” it is noted that:
“Under this bill it is doubtful you would be able to find a lawyer to represent you unless you could afford to pay them hourly. Lawyers know that people who have been badly hurt often cannot afford to pay hefty hourly legal bills. Thus, lawyers often enter into a contingency contract with clients. The lawyer promises to work hard on the client’s behalf, and if the lawyer wins the case, the client pays them a portion of what was collected. This bill makes it nearly impossible for lawyers to make that agreement with their clients. This is a move by the federal government to directly interfere with and restrict negotiated contracts.”
Victims of corporate crimes typically don’t have the money to pay attorneys upfront. The victim/plaintiff attorneys are paid out of the final settlement or award. If the amount that attorneys could possibly recoup is limited by Congress, this provides a serious disincentive for attorneys to take cases and to invest the time/money/effort into pursuing justice for victims.
H.R. 1215 Hurts Victims of Big Pharma
Another horrible bill that is going through the U.S. Congress is HR 1215 “Protecting Access to Care Act of 2017.” H.R. 1215 eliminates the rights of people harmed by medical professionals. It rigs the system, making it nearly impossible for injured victims to pursue lawsuits by imposing harsh time limits on lawsuits, denying the right to a trial by jury, limiting certain damages to $250,000 (even in states where such limits are unconstitutional), and protecting those who prescribe dangerous drugs and who hurt people with dangerous medical devices.
Corrupt Politicians Represent Big Business
H.R. 985 and H.R. 1215 are gifts to big corporations — big pharma, big ag, big chemical, big oil, and big banks — that prevent citizens who have been hurt by these corporations from gaining justice. The man who introduced H.R. 985, and who is ushering H.R. 1215 through the House Judiciary Committee, is Bob Goodlatte, a Republican from Virginia. During his time in Congress, Representative Goodlatte has received more that $2.1 million from agribusiness, almost $1.5 million from the finance, insurance, and real estate sector, more than $670,000 from the health sector (which includes pharmaceutical companies), and $1.3 million from miscellaneous business interests. Those industries have invested a lot of money in Goodlatte, and that investment is now paying off as he is now the chair of the House of Representatives Judiciary Committee, and has introduced a bill that will drastically limit the liability of large corporations. These corporations will be able to steal from and poison the American people, without consequence, if H.R. 985 and H.R. 1215 pass into law as they currently stand.
The Myth of the Frivolous Lawsuit
People like Representative Goodlatte claim that congressionally mandated judicial reform is necessary because there are too many frivolous lawsuits. This is a myth that has been repeated so many times that many, maybe even most, people think that it’s true. Of course, there are cases where an unscrupulous attorney or greedy plaintiff succeeds in getting a large payoff, but that situation is unusual, and it is far more common for legitimately injured people to be unable to gain justice (for the reasons described above) than it is for a frivolous lawsuit to move forward and win in court.
This skit from Adam Ruins Everything, though it is meant to be humorous, excellently explains how the myth of the frivolous lawsuit was started, perpetrated, and promoted by large corporations:
The case described in the video, that of Liebeck vs. McDonald’s, wasn’t frivolous, and neither are most lawsuits that individual citizens bring against large corporations.
Whenever someone tries to justify taking away your rights to a fair trial and your opportunities for recourse against a corporation that hurt you by claiming that “frivolous lawsuits” should be limited, be suspicious, question thoroughly, and understand that those people are trying to take away your rights to hold corporations that hurt people responsible for their crimes. When you hear the term “justice reform,” know that it is code for “politicians trying to take away your right to sue and chance of getting justice if a big corporation hurts you.” Fight not only for justice, but also for an honest and righteous conversation about the issues. The truth is that it is exceedingly difficult for legitimate victims to get justice and/or compensation for their losses. The truth is that the rights of citizens are being eroded and the rights of corporations are being elevated.
Welcome to the Corporatocracy
Through “judicial reform” bills like H.R. 985 and H.R. 1215, the U.S. Congress is working with big corporations of all sorts to rob citizens of their ability to gain justice. These “Representatives” are not representatives of the people, they are representatives of the corporations that hurt the people. These corporations are, after all, who pay the politicians.
Though corporate interests are quickly supplanting individual rights, there are still some checks and balances left in the system. Democratically elected officials still can be held accountable by the people who elected them. I encourage everyone who wants to be able to hold corporate criminals responsible for hurting and murdering people to email, call, tweet, or otherwise reach out to every member of the U.S. House Judiciary Committee, and tell them to oppose both H.R. 985 and H.R. 1215. The coroporatocracy has the upper-hand right now, but maybe democracy isn’t entirely dead. Please take a few moments to reach out to the U.S. House Judiciary Committee – thank you.
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