Over the past few years, the pharmaceutical industry has been undergoing transformational change. Advances in science and technology, regulatory adjustments, market dynamics, and global healthcare challenges have all contributed to the industry’s evolution. As the industry shifts, so too does the legal landscape, creating opportunities and risks among players vying for a prime position in the market.

Public opinion of the pharmaceutical industry has been traditionally negative, with public perception regarding prescription drug abuse, drug costs, and corporate greed stoking the industry’s bad reputation. However, perhaps Big Pharma’s image isn’t as dire as perceived; recent studies suggest that people’s attitudes toward pharmaceutical companies aren’t always clear-cut.

As innovations in drugs, vaccines, and medical devices continue to evolve alongside the public’s nuanced views of the pharma industry, how can pharma companies gain a competitive advantage in their litigation strategies and prepare for conflicts likely to ensue? What types of experts would best support pharma companies at trial, particularly in today’s divisive environment?

Let’s take a quick look at current views of the pharma industry and examine how to build a diverse expert team for pharmaceutical litigation.

How Juror Attitudes Toward Pharmaceutical Companies Provide Guidance on the Types of Experts to Retain

According to trial strategy consultants at DOAR, findings from their recent survey of 608 jury-eligible individuals indicate that people in two venues popular for Life Sciences litigation largely had positive opinions of pharmaceutical companies despite seeing the industry as being more concerned with profits than patients. Although the majority of people surveyed believed that prescription drug prices are too high, those who personally experienced or knew someone who has experienced a serious illness or financial hardship due to the pandemic attributed high drug prices to the actual expenses incurred by pharmaceutical companies, such as research and development, manufacturing, and marketing and advertising expenses.

In the context of intellectual property matters, disputes between brand/inventor drug manufacturers and generic drug manufacturers are often some of the most complex to litigate. In the survey, respondents were asked to imagine a dispute between a brand company that invented a drug that effectively treated a serious illness but was expensive and a company trying to create a generic and less costly alternative. Under this scenario and absent any other information about the case, more respondents said they would likely support the inventor company. This is a surprising reversal from general respondent views that regarded generic drug companies more favorably than brand companies.

So, what do these findings mean in terms of attorney’s use of experts in litigating pharma cases? Well, the degree to which jurors perceive the pharmaceutical industry as profit-driven implies that educating them about industry business models and profit margins may enhance their perceptions of your pharmaceutical clients.

And, regarding patent, Hatch-Waxman, and other matters involving brand/inventor companies vs. generic drug manufacturers, respondents’ support for the inventor company suggests that inventorship was an important factor despite the broad preference for generic drugs.

With that in mind, using legal and academic experts as well as former senior industry executives would heavily influence views of both brand and generic companies. These experts can testify about R&D, regulatory approval processes, the Hatch-Waxman Act, and more to highlight the unique and essential role that pharma clients play in the industry.

Attorneys should consider an expert team comprised of:

• Former Senior Industry Executives to discuss the pharmaceutical industry, company operations, R&D, FDA approval processes, and corporate financial models
• Former Senior Regulatory Officials to discuss the FDA approval process and the agency’s role in generic drug development
• Academic Experts who study and track the pharmaceutical industry and can discuss the value of brand companies and generics
• Legal Experts who can educate jurors on the Hatch-Waxman Act and the roles of brand companies and generics
• Valuation and Economic Experts who can explain market value, financial statements, and profit margins

In summary, the pharmaceutical industry is ripe for growth and change, and attitudes toward pharmaceutical companies are often nuanced. Identifying the areas where expert testimony can enhance your position on a case and building an effective team of highly credentialed experts can help you deliver successful litigation outcomes.

At WIT, our multidisciplinary teams of pharmaceutical experts are comprised of prominent academics, scientists, former regulators, and industry veterans with years of consulting and testifying experience. Learn more about WIT’s leading experts for pharmaceutical litigation.