the end of the line for "failure to warn" pharma suits?

....What these types of lawsuits generally have in common is that they are generated by lawyers and interest groups for profit or politics, not by consumers who have experienced an actual loss."












http://health.groups.yahoo.com/group/SSRI-Crusaders/message/36281




West Virginia Is No Longer A Judicial Hellhole? 1 Comment



By Ed Silverman // January 3rd, 2011 // 8:53 am



Shortly before the recent holiday break, the West Virginia Supreme Court of Appeals issued a ruling that had drugmakers and their attorneys cheering. After reviewing a lawsuit filed over the marketing of Pfizer's hormone replacement meds, the court decided consumers who sue for misrepresentation under the state's Consumer Credit and Protection Act now must also show proof of reliance to seek damages.



In other words, consumers will now have to show a causal connection between claims that they were injured and any alleged unfair or deceptive conduct by a drugmaker. The original suit that was filed in 2004 charged Pfizer's Wyeth used "unfair" and "deceptive" practices to promote its HRT meds to doctors and patients by using "misleading" statements in advertising, marketing and labeling.



In particular, the court ruled that the state law does not extend to prescription drug purchases, because doctors decide what to prescribe. "Prescription drug cases are not the type of private causes of action contemplated under the terms and purposes of the WVCCPA because the consumer can not and does not decide what product to purchase," the court wrote in its opinion (read here).



The ruling is a setback for West Virginia Attorney General Darrell McGraw. In a brief he filed with the court, he argued that requiring a consumer to show proof of reliance is a "significant impediment" to fraud claims, particularly in class actions. He also maintained this would lead businesses to try to evade consequences for deceptive acts by inserting clauses in contracts stating that consumers did not rely on what the salesperson said, The West Virginia Record notes.



"The Legislature made its intention crystal clear with the words they chose in providing this right," McGraw wrote in this brief. "To find otherwise, and hold that reliance is a requirement before a consumer can assert a private cause of action under the WVCCPA would impair the consumers' ability to stop practices before they cause widespread consumer harm."



However, the American Tort Reform Association hailed the opinion. "This is an important, commonsense ruling that sends a positive message to other courts," declared the ATRA, which had only days earlier listed West Virginia as #3 on its annual ranking of Judicial Hellholes (see the list). "What these types of lawsuits generally have in common is that they are generated by lawyers and interest groups for profit or politics, not by consumers who have experienced an actual loss."