DRUG AND MEDICAL DEVICE LITIGATION
CD: Could you provide an overview of the key trends impacting drug and medical device manufacturers and sellers? How routinely do these companies find themselves a target for litigation?
Gramling: Pharmaceutical and medical device companies are regularly targets for litigation and enforcement actions. In addition to constant product liability litigation, such companies often face antitrust, shareholder and class action litigation. Congress, plaintiffs’ lawyers and state attorneys general have also closely scrutinised pricing practices, most notably in the pharmaceutical industry. Other key trends include concerted efforts to expand and distort the public nuisance doctrine, ongoing generation of multi-district litigations (MDLs) and mass torts by plaintiffs’ lawyers, including in the non-prescription consumer goods space, and the filing of no injury class action litigation. In the MDL and mass tort settings, there is an increased recognition of the need for early assessment of cases as years of experience has revealed that very high percentages of cases filed in such litigations suffer from significant defects, such as no evidence of product use or exposure, as well as no injury.
Hill: As with many industries, there has been an increasing focus on environmental, social and governance (ESG) policies and initiatives. From curbing carbon emissions to improving access to medical treatments, drug and medical device companies are finding new ways to meet the evolving expectations of the public. Because drug and device companies are often targets of high-profile litigation, ESG initiatives carry added significance, but can also draw scrutiny. In an industry where public perception is critical and can have a meaningful impact on a company’s litigation risk and exposure, ESG messaging and policies will likely be an important consideration in both the boardroom and in future litigation.
Jan-Mar 2022 issue
Shook, Hardy & Bacon LLP