The Spring 2016 issue of Pro Te Solutio deals head-on with issues that are driving litigation in this modern era. And as it is with many issues, there are two sides to every story.
The first topic we wrangle involves the heart (or soul?) of mass tort practice: massive-scale funding of litigation. In “Funding Litigation and Treatment: Leveling the playing field or exploiting the little guy?”, we look at both sides of the issue. Does the real-world practice of funding litigation rightly serve the greater good, by assisting individuals who might never realistically be able to prosecute a case—or does the process, instead, taint the entire system with unethical outside influences that drive up the cost of litigation—and in turn making reasonable settlements out of reach? This article grapples with the two sides of this coin, and addresses the lack of regulation in this arena.
Our second article also looks at a topic that can send a shiver up our clients’ spines (and ours). The very term “off-label marketing” evokes thoughts of whistleblower suits, class actions, and product liability claims. But not so fast: in “Off-Label Use: Protected Commercial Speech or Misbranding?”, we consider both the downsides and potentially protected aspects of this topic.
Another admittedly distasteful topic (at least to our readers!) involves attorney advertising. We’re not talking support of the local PBS station by well-intentioned, long-standing law firms. Nope. We are looking square in the eye of those frequent advertisements leading with “Have YOU been injured by [name the product]? You may be entitled to compensation!” In “Plaintiff Attorney Advertising: Protected or Prosecutable?”, we evaluate the permissible angles of plaintiff advertising, with a discussion about what recourse—if any—may be had against false attorney advertising in the mass tort context.
The final article in this edition, “New and Noteworthy”, discusses West Virginia’s switch to the other side of the learned intermediary doctrine “story” across the United States: thanks to recent state legislative action, West Virginia has abandoned its previous minority position and, at last, has joined the majority of states recognizing this doctrine, holding that a manufacturer’s duty to warn runs to the informed intermediary (healthcare provider), not directly to the patient.
We hope that these articles are both informative and thought-provoking.
Off-Label Use: Protected Commercial Speech or Misbranding? Pro Te Spring 2016, by David W. Ohlwein
Plaintiff Attorney Advertising: Protected or Prosecutable? Pro Te Spring 2016, by Eric E. Hudson and Kyle R. Cummins