Articles Posted in Judicial Decisions

Under Maryland product liability law, the manufacturer of a product has a duty to ensure that the product does not present any unreasonable risk of harm to the consumer when the product is used for its intended purpose. Additionally, product liability law also generally applies a blanket of strict liability over all parties in the product’s chain of distribution. This means that any party in the chain of distribution may be liable for a plaintiff’s injuries caused by the product without a showing that the party was negligent.

DNA ChainWhen discussing the liability of a pharmaceutical manufacturer that allegedly created a dangerous drug, some specific rules apply. For example, in a recent case, the court discusses whether a brand-name manufacturer can be potentially liable in a case involving a plaintiff’s injuries that arose after consumption of a bioequivalent generic medication. Ultimately, the court concluded that the brand-name manufacturer could be held liable under the state’s product liability laws, and it dismissed the defendant manufacturer’s motion for summary judgment.

The Facts of the Case

The plaintiffs were two children born with serious developmental delays by the time they turned three, and they were later diagnosed with autism by the age of five. During delivery, the plaintiffs’ mother was given the generic equivalent of the medication Brethine to suppress premature delivery. The plaintiffs were born full-term but later experienced what they claim to be the side effects of the medication.

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Prescription errors can have lasting effects for Maryland patients. In a recent case, the parents of a two-month-old child brought a lawsuit against a doctor, alleging that the doctor improperly treated their child with the drug Reglan.

Young DoctorAccording to the court’s opinion, the child was referred to the pediatric gastroenterologist doctor for gastrointestinal issues, and the doctor diagnosed him with severe gastroesophageal reflux disease. The doctor continued to see the child for about a year and a half, and he prescribed him different medications, including Reglan. Reglan is normally recommended for a maximum of 12 weeks, except in cases in which the benefits outweigh the risks. The doctor later testified that he believed the benefits outweighed the risks in this case, and he attempted to wean the child off the drug, but his symptoms would reappear when he did so.

About a year and a half after his diagnosis, the child’s mother began noticing problems with the child’s development, including standing, balancing, and developmental delays. After she heard about the side effects of Reglan on a commercial, she brought up her concerns to the child’s primary care doctor. The gastroenterologist doctor subsequently told the primary care doctor to stop the Reglan prescription, due to the mother’s concerns.

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Maryland pharmacy errors occur far more often than most believe. In fact, it is estimated that upwards of five percent of all prescriptions filled contain some error. Of course, most of these errors are caught before a patient ingests the medication. However, some Maryland pharmacy errors can cause serious side effects that may carry life-long consequences.

Pill BottlesEarlier this month, an appellate court issued an opinion in a pharmacy error case requiring the court to determine if the plaintiff’s case was sufficient to survive a summary judgment challenge by the defendant pharmacy. After reviewing the evidence, the court concluded that since the plaintiff was unable to prove that the pharmacist or another employee failed to offer medication counseling at the time the prescription was picked up, the plaintiff’s case could not proceed toward trial.

The Facts of the Case

The plaintiff suffered from several serious medical conditions and was prescribed medication by his physician. The plaintiff’s wife went to the defendant pharmacy to pick up her husband’s medication, and she was given a bag containing two bottles. She did not know it at the time, but the bottles did not have her husband’s name on them.

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Earlier this month, an appellate court in Utah issued a written opinion in a personal injury case presenting an issue that often arises in Maryland pharmacy error and medical malpractice cases. The issue was whether the plaintiff’s expert’s testimony should be excluded from evidence because it was late-filed, and if so, whether the plaintiff’s case should be dismissed for failing to present necessary evidence.

StopwatchThe Facts of the Case

The plaintiff sued her pharmacy, claiming that it overprescribed drugs. However, at the time she filed the case, the plaintiff did not designate any expert who would be testifying in support of her case. It was not until the day of the summary judgment hearing that the plaintiff presented the court with the name and information of her expert witness.

Upon the defendant’s motion, the court precluded the plaintiff’s expert from testifying, finding that the expert’s information was provided well past the discovery deadline. After striking the plaintiff’s expert’s testimony, the court then determined that the plaintiff was unable to prove her claim against the pharmacy and dismissed the plaintiff’s claim.

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Earlier this month, a federal appellate court issued a written opinion in a product liability case brought against the manufacturer of Zoloft, alleging that the medication causes birth defects. The court’s decision reviewed a lower court’s decision to prevent the plaintiffs’ expert witness from testifying. Ultimately, the court concluded that the lower court was proper to not allow the expert’s testimony.

GavelThe Facts of the Case

The plaintiffs were a class of people who collectively claimed that the medication Zoloft caused birth defects when taken early in a pregnancy. In order to establish their claim, the plaintiffs planned on presenting several witnesses to show that the ingestion of Zoloft actually caused the birth defects in their children. However, the court prevented one of the key witnesses from testifying, based on the novel method the expert used in arriving at her conclusion.

The plaintiffs then tried calling another witness in place of the one who was prevented from testifying. The drug manufacturer objected to this witness as well, and the court conducted a hearing to determine whether the expert’s testimony would be admissible.

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Earlier last month, an appellate court in Tennessee issued a written opinion in a case involving the death of a man who had overdosed on prescription medication. The court ultimately determined that the patient’s death was attributable to his own actions. The case was presented to the court as a workers’ compensation case, but the issue the court decided was relevant to personal injury cases involving allegations of pharmacy error and medical malpractice.

PainkillersThe Facts of the Case

The petitioner was the surviving wife of a carpenter who involved in an accident while on the job. As a result of the accident, the man’s doctor prescribed oxycodone, a powerful and addictive pain medication. The man took the medication as directed at first but then began abusing it. According to the court’s opinion, he would skip doses of the medication in fear that he would run out when he needed it. He eventually started to take the medication with alcohol to increase the medication’s effectiveness.

About two years after his accident, the man’s wife discovered her husband’s lifeless body in bed. The woman, through her deceased husband, filed for workers’ compensation benefits based on the fact that the original injury her husband sustained occurred while he was on the job. An autopsy reported the man’s cause of death as opioid toxicity, with contributing causes of hypertension, alcohol use, and tobacco use.

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The Supreme Court of Alabama recently released an opinion granting the appellant’s request for the state’s high court to intervene in the case and compel the trial judge to dismiss the plaintiff’s claim as time-barred. The statute of limitations for the plaintiff’s claim had expired shortly before the defendant’s motion was filed, and the motion was ultimately granted because the plaintiff had originally sued the wrong entity after an oversight was made. After the error was discovered, the complaint was not amended to include the proper defendant until after the limitations period had expired. Since the court found that the requirements for an amended complaint to “relate back” to an original filing and toll the statute of limitations were not met, the plaintiff will be unable to recover damages for his pharmacy error claim.

Various PillsThe Plaintiff Alleges That a Dangerous Mistake Was Made

The plaintiff in the case of Ex Rel VEL, LLC is a former customer of a pharmacy owned and operated by the defendant. In the events leading to the filing of the lawsuit, the plaintiff was allegedly given an antipsychotic medicine, Risperidone, instead of his blood-pressure medicine, Ropinirole. After taking the wrong pills for four days, the plaintiff allegedly experienced an adverse health event and was hospitalized, at which point the error was ultimately discovered. Claiming that he suffered permanent and serious harm as a result of the mistake, he pursued a pharmacy error claim against the pharmacy that made the mistake.

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Earlier this month, a court in Nevada heard a case involving an interesting legal issue that has recently come up in courts across the nation. In the case, Burton v. Walgreen, the issue was whether a pharmacy had a duty to preserve evidence of an error made by one of the pharmacists. The court determined that whenever a patient returns medication to a pharmacy that was given to him in error, the pharmacy does have a duty to preserve it.

White PillsThe Facts of the Case

According to a summary of the case, the patient was prescribed Valsartan, which is a blood pressure medication. He filled the prescription at a local Walgreen’s pharmacy, and when he got home, he began taking the medication as instructed. After taking about five doses, the patient’s wife noticed that there were two different kinds of pills in the vial that her husband was provided. The patient’s wife then took the medication back to the pharmacy, where the pharmacist confirmed that the patient had been given unprescribed lithium pills in addition to his Valsartan.

After documenting the error, the pharmacist quarantined and destroyed the medication, pursuant to the company’s written policy. In a lawsuit later filed against the pharmacy, the patient claimed that the pharmacy had engaged in spoliation of evidence. Spoliation of evidence is the destruction or significant alteration of evidence by someone who knows or should know that the evidence will be used as evidence in an upcoming court case. A court can impose sanctions against a party for spoliation of evidence.

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Earlier this month, the Sixth Circuit Court of Appeals decided a case reinforcing the laws surrounding whom the manufacturer of a medication must warn about the potentially dangerous side effects of the medication. In the case, Yates v. Ortho-McNeil-Janssen Pharma., Inc., the Court ultimately determined that the duty to warn extends only to the physician, and not to the patient. Thus, the patient’s case against the drug manufacturer was properly dismissed by a lower court.

medicine-5-1544051Yates v. Ortho-McNeil-Janssen Pharma., Inc.

The plaintiff was a sexually active woman who was suffering from extreme menstrual cramps and consulted her doctor about potential medications that may help her. The doctor told her of two choices, ORTHO-EVRA and Depo-Provera. The doctor warned the plaintiff that there was some risk of blood clotting and stroke with ORTHO-EVRA, and the plaintiff decided to first try Depo-Provera.

After a few months, the plaintiff noticed she had gained weight, which was a side effect of Depo-Provera. She consulted her doctor, who again advised her of the risks associated with ORTHO-EVRA, and this time she decided to give it a try. The plaintiff suffered a stroke during the application of her first weekly patch. The woman filed a lawsuit against ORTHA-EVRA’s manufacturer, alleging that the company did not adequately warn her of the risks involved with taking the medication.

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Earlier this year, the Supreme Court of Texas affirmed the dismissal of a woman’s case after she failed to provide the requisite expert opinion supporting her claim within the required time period. In the case of Randol Mill Pharmacy v. Miller, the court determined that the a claim alleging negligence in a pharmacy’s compounding services qualifies as a “health care liability claim” and must therefore comply with the applicable rules governing those claims.drugs-ii-183492-m

The Facts of the Case

The plaintiff in the case was prescribed a special prescription by her doctor to treat her Hepatitis C. The prescription was not available in a mass-produced form, so a pharmacy had to create the medicine in a process called “compounding.” However, after a few weeks of taking the medication, the woman suffered a serious adverse reaction, resulting in several blood transfusions and ultimately ending in her losing sight in both of her eyes.

The woman filed suit against the pharmacy, alleging that the pharmacy “breached their implied warranties in the design, manufacture, inspection, marketing, and/or distribution.” She also filed suit against the doctor, but it was severed and tried separately.

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