Sell or Don’t Sell: Liability May Await Either Way
Litigation attorney Eric Alexander authored an article featured in Drug & Device Law analyzing liability theories related to decisions to continue or discontinue selling prescription drugs. Using the history of litigation over a 2009-2012 shortage of the rare disease drug Fabrazyme as a case study, Mr. Alexander explains his skepticism of both “stop selling” and “keep selling” liability theories. He highlights how the Fabrazyme plaintiffs changed their allegations over time to work around earlier standing deficiencies, showing the gamesmanship that should not allow such claims to proceed. While the U.S. Court of Appeals for the First Circuit's recent decision keeps the litigation alive, Mr. Alexander makes a strong argument that the merits still favor the defendant and that plaintiffs should have stopped long ago. His analysis provides an insightful critique of questionable product liability theories in the pharmaceutical context.