In 1999, the Drugs-R-Us began testing its new drug, Reduceo, a medicine to help people lose weight. Tests looked promising and, in 2006, the company applied to the FDA for approval to market Reduceo as a prescription drug. In March 2009, the FDA granted Drug-R-Us approval to market Reduceo. Reduceo was sold with some "diet enhancing" cookies that contained no drugs but were claimed to help dieting with Reduceo.
Frank saw an ad for the new drug. The Reduceo ad stated that it was a "wonder drug" and "tests prove it is the safest weight reduction drug on the market today!" Frank was interested and made an appointment to see his doctor.
Frank's physician prescribed the new drug for his patient. Frank had no success using other weight-loss drugs, and dieting and exercise seemed ineffective. Frank took Reduceo from June until the end of August and lost 25 lbs. He also ate Reduceo's cookies. He was delighted with his weight loss, but was concerned because dots appeared before his eyes, causing disorientation. One day, the dots appeared before Frank's eyes while he was driving. He became disoriented and hit a Teresa, an 8-yr-old girl who was riding her bicycle. Both Frank and Teresa were seriously injured and have substantial medical expenses.
When Teresa's teacher, Ms. Melon, heard the news, she was cutting potatoes and threw up her hands in disbelief. The knife flew from Ms. Melon's hand. Grady, the self-employed refrigerator repairman was working nearby. The knife struck Grady in the eye, leaving him unable to continue to work. This was especially upsetting to Grady since he was "this close" to signing contract worth millions with Whirlpool to repair all of the refrigerators in the state; Grady will be unable to perform on the contract.
a.) What advertising standards must Reduceo meet for its medicine? Is there a different standard for the cookies?
b.) Discuss Grady's chances for recovering in a cause of action for torts from Reduceo? From Frank?
c.) Suppose Grady is successful in a torts action against Reduceo, what will the court use to determine damages?
d.) Ms. Mellon is distraught and unable to continue teaching, she comes to you seeking counsel on recovering her damages in a torts action against Reduceo. Fully discuss your response.