A prime example of a drug litigation case is the J.R. King case. This is a civil case in which J.R. King, a diabetic, became extremely ill and ultimately died. The issue in the case was whether or not he received appropriate medical care.
At first, King’s insurance company did its best to try and solve this crisis.
First they tried to take him off the pharmaceutical kick list, but that didn’t work out so well because “anyone who has ever had their life insurance cancelled can testify that it never returned to normal once they were off the plan.” So then the insurance company decided to go after the settlement money. That was when they really got creative and used the “tough love” approach to trying to get the case dismissed.
The problem with this approach was that the insurance company couldn’t show that the settlement money was the direct result of the “unfair treatment” of J.R., as the plaintiff claimed. In other words, they had to show that there had been some sort of injury which resulted from J.R.’s diabetes. But if they could show that injury arose because of J.R.’s “unfair treatment,” then the case would have been allowed to go forward and judgment could have been awarded against J.R.
So they made up a bogus report and filed it as a legal document. Unfortunately, the document was notarized by a real doctor.
In fact, the same doctor who co-authored the report is now a member of the King Law Firm. The court allowed the “doctor’s” fabricated report to be admitted as evidence. So J.R. got more time to file his suit against GlaxoSmithKline.
There are certainly cases where the plaintiff has simply made up a claim in an attempt to gain sympathy and money. But it’s also fairly common for plaintiffs to submit expert reports which are grossly misconstrued and inaccurate. A prime example of this is a case which I’ve handled. A physician who was a plaintiff in a malpractice suit submitted a study purporting to demonstrate that Viagra increases the risk of erectile dysfunction in men. Subsequently, his study was admitted as expert testimony in the trial. This caused the judge to award a huge judgment to the defendant.
There are, however, instances where the plaintiff’s expert report may have some merit. For instance, a recent case where the plaintiff provided a protocol for treating high blood pressure led to the dismissal of the plaintiff’s class action lawsuit regarding non-traditional mesothelioma claims. Although class action lawsuits are pretty much dead in the UK, the FDA recognizes the existence of such lawsuits and is reviewing them. If the FDA determines that these suits are meritorious, then they will begin to allow class action lawsuits in the future.