Sometimes it all depends on the docs. One of the reasons that the Bone Screw litigation never really went anywhere is that the prescribing physicians were all tertiary care spine surgeons who by and large knew the devices they were implanting inside and out. In almost a decade of litigation, the Bone Screw plaintiffs couldn’t get a single one of them to testify – even as a paid expert – that the devices were defective.
In other litigation defendants aren’t that fortunate.
And then there’s Drew v. AHPC, Inc., 2012 U.S. Dist. Lexis 49319 (E.D. Pa. April 9, 2012). In Drew the prescribers actually tried to become plaintiffs themselves – alleging that they “operated weight-loss clinics or other facilities where they prescribed the [product].” These prescribers alleged that they didn’t know squat about the drugs they were prescribing:
According to the complaint, [defendant] engaged in a fraudulent scheme to conceal the risks associated with these drugs and aggressively to market the drugs to healthcare providers. Plaintiffs do not assert that they purchased diet drugs directly from [defendant] but rather that they acted as “conduits” for the sale of [the products] by prescribing the drugs to patients.
Id. at *2.
The plaintiffs did not allege that they, certainly, suffered any physical injury – or even that their patients did. Rather they claimed that, when the risk information became known, their businesses (substantially based on the prescription of these drugs) dried up:
Plaintiffs allegedly had their businesses ruined, years of good will undercut, their livelihood destroyed, their standing in their respective communities impaired, and the[ir] investment rendered substantially worthless when [defendant] withdrew the drugs from the market.
Id. ad *2-3 (quoting complaint)
It’s a somewhat peculiar theory, since these businesses were based on prescribing drugs that, allegedly, shouldn’t have been sold, and that the plaintiffs would have been more than happy to go on prescribing had the supply not dried up.
Fortunately, the court thought so too. Even the capacious California consumer protection statute (“UCL”) wasn’t broad enough to permit this sort of claim:
Plaintiffs have not alleged an injury sufficient to confer standing under the UCL. Plaintiffs built profitable clinics and do not assert that they lost money while the [drugs] were on the market. Instead, plaintiffs allege that they lost future business profits when [defendant] withdrew the drugs from the market at the request of the FDA. Plaintiffs simply have no legally protected interest in [defendant’s] continuing to manufacture and sell the drugs in issue.
Drew, 2012 U.S. Dist. Lexis 49319, at *4. They weren’t injured by any “sale” of the product, but only by their inability to go on prescribing it. That is, they didn’t have a claim that they were injured because they couldn’t continue prescribing allegedly dangerous drugs.
The UCL doesn’t allow classic “damages.” There wasn’t any basis for an injunction because the drugs had not been sold for years. Nor was there a basis for “restitution,” since none of the purported injury consisted of monies retained by the defendants. Id. at 5. The mere loss of business opportunities to go on selling an allegedly defective product simply isn’t recoverable:
Compensation for a lost business opportunity and nonrestitutionary disgorgement of profits are not available as remedies under the UCL.
Id. Bye-bye UCL.
The remaining claims just didn’t fit at all. Strict liability and negligence had no application where the plaintiffs alleged no physical injury, but only “economic loss.” Drew, 2012 U.S. Dist. Lexis 49319, at *6-7. Implied warranty was just as off the wall, since there was no contractual privity at all – indeed, the prescribing physician plaintiffs didn’t buy or sell the drug at any point; they only prescribed it. Id. at *8-9. Nor were they “ultimate consumers,” only self-described “conduits.” Id. at *9. Finally, even if plaintiffs had adequately pleaded fraud (which they didn’t), they once again didn’t have a cognizable injury, only loss of future expectations:
Even if sufficiently pleaded, plaintiffs’ fraud claim fails because they have suffered no damage. While the product in issue was on the market, plaintiffs made a profit from [prescribing it]. They have not alleged that [defendant] represented to them that [the drugs] would be on the market indefinitely or that [it] guaranteed the success of their investments.
Id. at *10-11.
Thus, prescribing physicians cannot become plaintiffs (at least in California). The theory was downright bizarre to begin with – strict liability turned on its head – since the plaintiffs sought damages for not being allowed to continue prescribing the purportedly defective product to their patients.