Food And Drug Law Policy Forum

Authors: James M. Beck

Pharmaceutical manufacturers and other state contractors are increasingly subject to suits brought by state attorneys general (AG). Such suits may claim a variety of alleged misdeeds, but frequently concern scientific statements about the effectiveness of off-label uses, regardless of the scientific accuracy of the information. Because state attorneys general act on behalf of the population of an entire state, their litigation inherently carries with it the coercive potential of large damages. Thus, the pressure to settle such actions can be extreme.

A recent decision, however, demonstrates that there can be a silver lining, at least potentially, around at least some of those big, dark clouds of state attorney general litigation. Companies considering the settlement of such actions should be cognizant of the recent Minnesota Supreme Court decision, Curtis v. Altria Group, Inc. The legal principles underlying the Curtis decision, under analogous facts, should be applicable to all attorney general actions, with respect to both the state litigation and subsequent private copycat actions, no matter the product or other allegations upon which such suits might be based.

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