Lawsuits against pharmaceutical companies generally center on product-liability claims. A new trend in pharma cases, however, is to include a different kind of claim: a claim for unfair trade practices.
A recent decision from the South Carolina Supreme Court addresses unfair-trade-practices claims against a pharma company. In State ex rel. Wilson v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., the South Carolina Supreme Court held that representations about the drug Risperdal by Janssen Pharmaceuticals (a Johnson & Johnson subsidiary) violated South Carolina’s analogue to N.C. Gen. Stat. § 75-1.1. Applying that South Carolina statute, the court sustained a 136-million-dollar award against Janssen.
This post reviews that decision—one that reveals the potency of unfair-trade-practices doctrine.
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No Actual-Injury Requirement for a State Plaintiff
In the South Carolina Supreme Court, Janssen argued that the state’s unfair-trade-practices claims failed as a matter of law, because the state had not shown that any unfair or deceptive conduct had an adverse impact within the state.
The supreme court disagreed. It held that in South Carolina, only private plaintiffs have to show an actual injury in an unfair-trade-practices claim. The state had the burden to show that Janssen’s statements had a tendency to deceive, but it did not have to show that any readers changed their behavior based on these statements.
The court called Janssen’s absence-of-injury argument “nothing more than an ‘if we lied, nobody fell for it’ defense.” Rejecting that defense, the supreme court held that the state’s unfair-trade-practices claims were viable despite the lack of a showing of actual injury.
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Thank You Mr Sawchak, Ellis & Winters, & JDSupra Business Advisor.
But then, what more would you Expect from Janssen, considering what you get from Govt?
But then, what more would you Expect from Janssen, considering what you get from Govt?
A U.S, Govt. decision/non-intervention regarding the Free Speech Rights of drug co. sales reps.
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