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Expanded Liability Exposure for Drug and Medical Device Manufacturers: Uninjured Plaintiffs Seek Recovery for 'Artificially Inflated Prices' or Other Relief

By D. Jeffrey Campbell, Linda Pissott Reig and John W. Leardi

When a patient files a lawsuit against a drug or medical device company, it is typically based on product liability allegations that the pharmaceutical product caused physical injury. In recent years, however, patients are asserting violations of state consumer fraud or unfair trade practices acts in addition to product liability claims. The benefit of doing so is clear. These claims, if successful, allow enhanced recovery of treble damages, attorneys' fees, court costs and fees.

What happens, however, when a drug or medical device has not caused the litigant any physical injury? Rather than claiming physical injury, a purchaser sues based on a state's consumer fraud or unfair trade practice act, alleging that the drug or medical device company engaged in fraudulent advertising or promotion, or withheld safety information from the physician and consumer. For example, uninjured plaintiffs seek damages for allegedly having paid an “artificially inflated price” due to the dissemination of misleading information about the product.

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