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Reducing Frivolous Litigation

By Michael R. McDonald, Kim M. Catullo and Michelle M. Bufano
July 29, 2004

Part One of a Two-Part Article

Frivolous lawsuits are one of the most problematic issues facing drug and medical device companies today. Many frivolous lawsuits are either ultimately dismissed for lack of causation after years of litigation and the expenditure of exorbitant sums of money in defense costs, or settled by corporations that are not culpable, but “litigation-weary.” This waste of time and resources easily could be avoided if plaintiffs were required to submit an affidavit of merit with respect to product defect and/or causation at the inception of the case.

A statutory affidavit of merit requirement is certainly not a novel concept and is currently employed in several jurisdictions in professional negligence cases with respect to the standard of care. The primary purpose of an affidavit of merit requirement in the professional negligence context is the reduction of frivolous claims. This rationale applies equally to products liability cases and begs the question as to why similar statutes do not exist in the pharmaceutical and medical device products liability context.

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