The Avkare lawsuit is an intriguing case with interesting twists and turns. First, the claim that they are the victims of a “malpractice” and “fraudulent” act is strange and yet it is also the basis of their case. They were not the first victim of this lawsuit, nor will they be the last.
In fact, in reviewing Avkare’s lawsuit and its claim to be victims of fraud, I was curious as to what happened over the path of the lawsuit. If you read the Avkare lawsuit itself, you will see that they filed suit against their former employer, their former chiropractor, and their former personal injury attorney. There were also additional claims of other wrongs, such as defamation and invasion of privacy. It seems that the lawsuit was intended to harass and hurt these three defendants. This would be somewhat unethical of them, but I guess it is all part of the “cover up” that occurs when an injured person or their family member files a lawsuit.
Further, there is one more thing to note about this lawsuit.
As part of the complaint and discovery process, they had to submit interrogatories to the defendants, and this is where we find the real meat of the story. In this section, they asked to produce records from the three defendants. In many cases, it turns out that the plaintiff’s attorneys do not have any records from the three defendants, which is odd. Normally, the plaintiff’s attorneys do have discovery access to the relevant records, but apparently they didn’t have them here, despite the nature of the complaint and discovery.
Now then, I suppose that it would be possible for a lawyer to have discovery proof on all three defendants here, but it seems very unlikely. Also, it appears that there may be some issues here with how the discovery laws apply to this situation. Perhaps someone else can look into this and post an update?
In any event, after reviewing all of this litigation and all of the plaintiffs’ filings in the Avkare lawsuit, I think it is safe to conclude that the claims that the plaintiffs filed are quite simply and indeed easy to defeat, especially on a “contingency basis”.
That being said, what is troubling is the fact that they’ve gone to such great lengths to get this lawsuit filed, and yet somehow they’ve also mounted a strong defense against their own claims and herein lies the problem. It appears that the “defense” that the defendants have mounted revolves around a couple of issues.
First, the claim states that there was no evidence that the products in question were defective. However, the complaint also points out that the FDA itself noted that Avkare’s products met all the applicable safety standards. So, what this means is that the plaintiffs have actually fraudulently filed a “liability” claim, which is not a “fault” per se, but rather an accusation, and as such, the case has been filed in “innocent person” court – i.e. with the defaulting party (the defendant) as the plaintiff. And if the defendants fail to respond properly, this claim may well be allowed to move forward.