• January 18, 2012

Pharmaceutical and medical device companies are in business to make money by providing medicine, treatments, or devices that promote health, of course.  It would take a profound cynicism on the one hand (if one were to argue they do not wish to promote health) or profound idealism on the other hand (if one were to argue they do not care about making money) to quibble with that basic proposition.

But then how “safe” do their products have to be so they can avoid being demonized as venal, callous, and subject to punitive damages, because sometimes their products might not always work and they may even sometimes cause harm or illness?

As a first line of defense, pharmaceuticals and device manufacturers seek protection under federal regulation but there are ways for such manufacturers to game that system (by promoting, for example, “off label” uses or, theoretically, by duping federal regulators by other means (i.e., concealing or distorting data as to efficacy or side effects)).

So the FDA may afford medical companies some protection, but that protection is incomplete.

It will fall to Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) to decide whether Stryker Corporation’s “pain pump” and, specifically, the risk that its use for certain orthopedic surgeries might result in a painful condition known as chondrolysis, rises to the level of deserving even the possibility of a finding of punitive damages by a jury.

Stryker, of course, forcefully argues that plaintiff is not even close to providing the minimal evidence required to bring  a punitive damages claim.  Even after oral argument on the motion, Stryker has provided still more argument to try to avoid a jury’s consideration of whether punitive damages might be warranted.

There are apparently many “pain pump” lawsuits nationwide. A punitive damages risk can easily double, triple, or quadruple a defendant’s liability exposure and no lawyer can predict every jury’s verdict.  In short, there might be a great deal riding on this motion.

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