A recent USA Today article reported that 10% of all drugs (including both prescription and over-the-counter medications) sold globally are counterfeit or may contain diluted versions of the real product or non-active and possibly harmful ingredients. The Internet has contributed to the proliferation of counterfeit drugs as consumers seek to save money by purchasing drugs from discount websites. In some cases drug manufacturers are cutting corners, seeking low-cost (and unsupervised) suppliers to keep costs down. Both practices present a dangerous mix for consumers.
Litigation involving the distribution of counterfeit drugs began in 2002. One of the first counterfeit drug cases involved a counterfeit form of Epogen distributed to more than 25,000 cancer patients. A patient sued the name brand drug manufacturer, the distributor and the pharmacy on products liability claims. The name brand drug manufacturer was dismissed from the case because they did not manufacture the counterfeit drug. The distributor was found negligent for purchasing drugs on the gray market and the pharmacy was found liable for breach of the implied warranty of merchantability.
In a 2003 case involving counterfeit Lipitor, the name brand drug manufacturer and pharmacy were dismissed from the case and the distributor was found liable. More recently, contaminated Heparin and fake Avastin (another cancer drug) were distributed in the U.S. and quickly became the subject of lawsuits.
Legitimate drug manufacturers (such as Pfizer, Inc. for example) are generally not liable for counterfeit versions of their drugs. However, they can be liable for production and distribution of defective or contaminated drugs if that manufacturer purchased and included counterfeit or tainted ingredients in the production of the defective drug.
This general lack of liability by name brand drug manufacturers in counterfeit drug cases leaves consumers with causes of action against only the distributors and resellers. The result is consumers harmed by counterfeit drugs have challenging obstacles to overcome in a lawsuit. First there is the difficulty of identifying and locating an online distributor. Second, that retailer, unless they are a genuine, licensed pharmacy, will have limited resources to pay a judgment. And third, selling counterfeit drugs is a criminal offense.
Additional difficulties for plaintiffs in these cases include failure to preserve the allegedly counterfeit drugs (as most plaintiffs consume their prescriptions). It can also be difficult to prove that the alleged injuries resulted from the counterfeit drug. In cases against a legitimate distributor or pharmacy there are difficulties in proving that the distributor or pharmacy had knowledge of possible counterfeiting and failed to take steps to ensure genuiness of the product.
As the counterfeit drug market continues to grow, this problem will only be magnified. The savvy Certified Legal Nurse Consultant should already be looking for attorneys representing consumers or defending this growing area of litigation.
I’m Just Sayin’
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