The Litigation Consulting Report

Making the Complex Understandable in Pharmaceutical Cases

Posted by Ken Lopez on Fri, Feb 17, 2012 @ 12:54 PM


making complex cases understandable in pharma litigationPharmaceutical companies can be embroiled in many types of litigation. Very often, because of the length of time and the tremendous investment of money that it takes to develop a new drug and bring it to market, these cases can be crucial to the company’s continuing financial health.

For this reason, it is crucial that a litigator make these often complex cases understandable for the fact-finder, whether judge or jury. Once understanding is achieved, persuasive graphics and argument can be layered on top of that understanding.

Among the types of cases that pharma companies can frequently encounter are:

  • Products liability cases. Often, plaintiffs and their lawyers use pharma cases as attempts to develop new theories of liability and to establish new theories of causation of harm. The defendant drug companies and their law firms need to explain to jurors, who are likely to be suspicious of big pharma companies, why the company should not be held liable. Making complex information understandable in these cases is essential.
     
  • False Claims Act cases. Under the False Claims Act, someone who believes that the government has been defrauded can bring a case that the Department of Justice has the option of joining. These cases can include charges of billing fraud, kickbacks, violations of good manufacturing practices, wrongdoing in clinical research, and other allegations.

     
  • Antitrust litigation. As is true of many industries with only a few large participants, the pharma industry is often the target of antitrust cases. These can be either civil or criminal in nature and can be brought either by the government or by private parties. They can include allegations of monopolization of the market for a drug, charges that a merger is illegal, or allegations of illegal collusion among competitors.
     
  • Patent litigation. This type of litigation has become common because of the passage of the Hatch-Waxman Act in 1984. The act provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug.  Here, the complexities of the process can be a struggle for a jury.  Thus, the use of litigation graphics is essential to make complex information understandable.

For example, under Hatch-Waxman, the application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA).  Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA. If that approval is delayed, the brand name firm continues to be able to lawfully sell its brand name drug without a lower priced generic equivalent in the market. One lawful mechanism that brand name companies can use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA.

A Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent to the brand name drug and thus should not be approved for sale.  Should the Citizen Petition be deemed only a mechanism for delaying approval of the generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations.

In a case of this type, our challenge in creating an effective trial presentation was to create trial exhibits that taught the jury and persuaded the jury simultaneously. The trial exhibits (below) were part of a PowerPoint presentation that explained how differently Citizen Petitions and ANDAs are handled at the FDA.

 

Similarly, in the “Hatch Waxman ANDA Bioequivalency Exhibit” (below), the straightforward area graphs show a jury how the proposed generic drug has a different concentration level and is thus not bioequivalent. This exhibit helped lead to a complete defense verdict for our client, a major pharmaceutical company.
 

 

Often pharmaceutical litigation involves topics at the microscopic level, and it is in such instances that making complex information understandable becomes especially critical.  In the short animation below, we demonstrate how an impenetrable layer is created by a polymer. This explanation was critical to a jury's understanding in patent litigation worth hundreds of millions of dollars. 
 


Paraphrasing Mark Twain, if litigators had more time to prepare, they would usually make a shorter presentation that is easy to understand.  The key to a shorter, more efficient presentation is taking the necessary time to make complex information easy to understand or hiring an effective demonstrative evidence/litigation consulting firm. Like many aspects of A2L Consulting's work, making the complex understandable is simple but not at all easy.


Learn more about A2L Consulting's work:



demonstrative evidence in pharmaceutical cases makes complex understandable 

Tags: Trial Graphics, Litigation Graphics, Courtroom Presentations, Trial Consulting, Animation, Patent Litigation, Pharmaceutical, Science

Join 5,200 Subscribers and Get Notified of New Articles Every Week

Watch Now: Using PowerPoint Litigation Graphics to Win - Webinar

using powerpoint litigation graphics

Free Litigation Webinars - Watch Now

ryan flax a2l litigation consultants webinar recorded


patent litigation webinar free litigation graphics demonstrative

Featured E-Book: The Patent Litigator's Guide to Trial Presentation & Trial Preparation

patent litigation ebook 3rd edition

Featured Free Download: The Complex Civil Litigation Trial Guide

a2l consultants complex civil litigation trial guide download

Free Webinar - Integrating Expert Evidence & Winning Arguments - Watch Anytime.

expert witness teach science complex subject courtroom webinar

Nationally Acclaimed - Voted #1 Jury Research Firm and #1 Demonstrative Evidence Firm in the U.S.

voted best demonstrative evidence consultants

A2L best demonstrative trial graphics consultants
best demonstrative evidence litigation graphics consultants

Download the (Free) Storytelling for Litigators E-Book

describe the image

Considering Using a Trial Technician at Your Next Trial? Download this first.

trial technicians trial technology atlanta houston new york boston virginia

Featured Free Download: Using Science to Prevail in Your Next Case or Controversy

using science to win at trial litigation jury

Featured FREE A2L E-Book: Using Litigation Graphics Persuasively

using litigation graphics trial graphics trial presentation consultants

Free Jury Consulting & Trial Consulting Guidebook for Litigators

jury consulting trial consultants guide

Timelines Appear In Most Trials - Learn how to get the most out of using trial timelines in this ebook

trial timelines graphics consultants litigators

Featured Complimentary eBook - The 100-page Antitrust Litigation Guide

antitrust ebook a2l litigation consultants

Featured Complimentary eBook - Leadership Lessons for Litigators and Litigation Support

leadership lessons litigation law firms litigation support

Featured E-Book: The Environmental Litigator's Guide to Trial Presentation & Prep

environmental litigation trial presentation trial prep ebook a2l

Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting
Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

Articles by Category

Follow A2L Consulting

Member Red Well Blog
ABA Blawg 100 2013 7th annual

Follow Us on Google+

A2L on Google+