Drug manufacturers sometimes know of serious risks associated with use of their drug, but continue to market the drug without adequate warnings anyway. In Mississippi, plaintiffs who are hurt by a dangerous drug that did not come with a warning or did not come with adequate warnings, can allege failure to warn under Miss. Code Ann. § 11-1-63. These plaintiffs will need to prove: (1) the drug was defective and lacked adequate warnings, (2) the defect rendered the drug unreasonably dangerous, (3) the defect was the proximate cause of their injuries and (4) the drug manufacturer knew or should have known about the unreasonable risk of danger and that consumers wouldn't know about it.
In order to prove a drug was unreasonably dangerous and lacked warnings, the plaintiff will have to prove evidence that proves the dangerous drug had a serious side effect that was not part of the manufacturer's warnings. For example, studies have shown that the atypical antipsychotics Abilify and Risperdal can cause gynecomastia in teenage boys and young men. The detrimental psychological effects of growing breasts as a teenage boy can be substantial. A teenage boy's family could bring a failure to warn lawsuit against the manufacturers of certain atypical antipsychotics.
Proving proximate causation may require expert testimony, medical studies and expert testimony. In many cases, a plaintiff's attorney bringing a failure to warn case will consult with an expert even before filing a lawsuit. Usually, the medical studies and expert testimony must align with prevailing views in the expert's community. An expert who has opinions that are too far afield from other experts in his field may not be able to testify.
The plaintiff doesn't need to prove that a defendant actually knew that a particular drug was dangerous and failed to warn. Rather, a plaintiff can succeed in proving this element by proving that the defendant should have known. Drug manufacturers that choose to look the other way when they have even a little bit of evidence that consumers could be harmed by a drug are not shielded from liability.
If you prove all four elements of a failure to warn case, you may be awarded compensatory damages. Compensatory damages are economic or noneconomic. Economic damages compensate a plaintiff for tangible expenses caused by an injury, such as medical bills, lost wages or income, out-of-pocket expenses, and costs of rehabilitation. Noneconomic damages are those damages that compensate a plaintiff for injuries that require a subjective assessment by the jury. For example, using the Abilify hypothetical above, noneconomic damages would include emotional distress damages suffered by a teenage boy who has breasts, including pain and suffering that arose due to teasing or bullying at school.
When the defendant's conduct is egregious, you may also be eligible to receive punitive damages. Under Mississippi law, you will need to show the defendant was motivated either by actual malice or with reckless disregard. It can be difficult to prove actual malice in a failure to warn lawsuit against a drug manufacturer. However, if a drug manufacturer actually knew of a serious side effects and covered them up to increase profits, this would be conduct that showed reckless disregard. Mississippi caps punitive damages in proportion to a defendant's net worth.
If you hurt because of a drug manufacturer's failure to warn about a dangerous drug, the experienced Mississippi personal injury attorneys of Coxwell & Associates may be able to build a strong case on your behalf. Contact us for a consultation.
More Blog Posts