This post is mostly directed to our in-house readership, although you out-house folks can feel free to pass along what we say to your clients.
Our point today is to urge drug/device companies who aren't members of the Product Liability Advisory Council ("PLAC") to join. Annual membership in PLAC costs $6500, which is a pittance compared to the amount of a single verdict - heck, a single settlement - in a significant product case. It's less than a third of the cost that PLAC pays (and it only pays bargain-basement prices to start with) to file a single brief.
PLAC is not an industry group, it's a topical group, and its topic is product liability. Its primary function is to file amicus curiae ("friend of the court") briefs in appellate cases that are likely to have a significant impact on product liability litigation. Those are mostly (but not always) product liability cases.
Bexis has sat on PLAC's nationwide case selection committee for over a decade now. He knows what PLAC does and how it helps his clients - and similarly situated product liability defendants everywhere.
How would your company's litigation be without the learned intermediary rule? In recent years, PLAC has filed amicus briefs supporting adoption of the rule in the Supreme Courts of Kentucky, Georgia, Connecticut, and Texas (at least). Unfortunately, nobody told PLAC about West Virginia.
How would your company's litigation be without Daubert? PLAC helped invent Daubert, and because it's a topic group, not an interest group, it's been in all the Supreme Court's Daubert decisions - whether the product is a drug, or a tire, or something else. PLAC has even filed in criminal cases (the validity of drug-sniffing dog evidence), where significant Daubert issues were raised. PLAC has been in state court expert testimony cases, too - fighting the good fight - whether the product is benzene . . . or Doritos.
How would your company's litigation be if there were personal injury class actions? PLAC's been in the thick of that fight - in the Supreme Court asbestos cases that turned the tide against class-action-based litigation abuse, and in just about every court of appeals case that's followed, whether the product is medical devices . . . or cigarettes. There's a reason why no personal injury class action has survived a contested appeal in the entire federal system since Ortiz/AmChem, and PLAC is a big part of that.
How would your company's litigation be if there were federal preemption - or for you PMA manufacturers out there - if there weren't? PLAC's been in all of those cases, too, win or lose, whether they involve, drugs, medical devices, vaccines . . . or cars.
How would your company's litigation be if federal regulatory compliance precluded punitive damages? If there were no due process aspect to punitives? PLAC's been fighting that battle for years - in the Supreme Court and elsewhere - almost entirely in non-drug cases. However, the next key punitive damages case could involve a drug or device.
How would your company's litigation be if plaintiffs could take your confidential product formulations and distribute them freely to the press? PLAC's fought that battle, too. It comes up most frequently in tire litigation, but PLAC's also been there when the issue was redaction of identifying information in adverse event reports.
How would your company's litigation be if there was no comment k "unavoidably unsafe" defense - or if that defense applied to all drugs/devices across the board. PLAC's fought that fight, too.
How would your company's litigation be if there were no consumer protection claims? PLAC just helped win that issue in one of the least defense friendly jurisdictions in the country - West Virginia. PLAC was in there swinging that these claims were incompatible with FDA approval, and that's what the West Virginia court held. PLAC's also been out there supporting a reliance element where it can (such as Pennsylvania), and individualized causation element where it can't (New Jersey, Illinois). The results have been encouraging.
Market share liability? Public nuisance? Alternative designs? Successor liabilty? Negligence per se? Subsequent remedial measures (such as recalls)? Admissibility of regulatory compliance? Res ipsa loquitur? PLAC's weighed in on all these issues, often in cases far removed from drugs and devices. But take it from us - read our posts on these subjects - all of these issues can have major reprecussions in this or that drug/device case.
$6500 a year is a pittance. For that, not only does a PLAC corporate member get PLAC providing cover on major legal issues across the country, but it gets unlimited attendance at PLAC's two annual meetings, which provide enough sophisticated CLE to satisfy any state's requirements, and does so on cutting edge topics that companies need to know about. You won't fall asleep during a PLAC conference.
There's more. PLAC has a listserv of hundreds of active product liability defense attorneys at practically every major firm in the country. Need information on an opposing expert? Need your own expert? Need to know about some peculiar issue? Seek help in the PLAC listserv and you shall find. In fact, the type of information sharing that goes on within the PLAC listserv was a major inspiration for this blog.
Anyway, if we've convinced anybody, we're happy. Any company interested in joining (for regular defense attorneys there's a substantial waiting list) can call PLAC at (703) 264-5300, and ask for Hugh Young. He can send you more information. You can also email Bexis (Jim Beck) through the links on the blog, if you want to discuss PLAC.
Do it. You'll be glad you did. The next $10 million verdict PLAC helps get overturned might be yours.