Lawyers in Drug, Device Injury Cases Fight State Ad Limits

Two West Virginia attorneys want a federal court in the state to block a new law restricting what lawyers can say in advertisements seeking clients who allegedly have been injured by drugs or medical devices.

Steven Recht and Stephen New asked the U.S. District Court for the Northern District of West Virginia Wednesday for an order declaring the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act violates their First Amendment rights.

Alesha Bailey, a woman who says she wouldn’t have known about her potential claims against the maker of the diabetes drug Invokana if she hadn’t seen New’s advertisement, joined the lawsuit.

The law signed by Gov. Jim Justice (R) in March is due to take effect June 5.

Lawyer advertising is protected speech under the First Amendment, a brief in support of the attorneys’ preliminary injunction motion says. States thus are substantially limited in their ability to restrict truthful, nonmisleading advertising, it said.

West Virginia’s new law “plainly” burdens truthful, nonmisleading speech about drugs and medical devices and requires communications that are unrelated to legal services, the attorneys said.

It requires attorneys to include certain disclaimers in their ads warning potential medical device injury clients not to stop taking prescribed drugs, even if the drugs are unrelated to the device, they said.

Attorneys also may not use the word “recall” in ads, even if the drug or device maker voluntarily recalled the product or the Food and Drug Administration asked it to do so, the brief said.

The state had no justification for enacting these overly broad, vague, and unreasonably burdensome restrictions, the attorneys said.

An injunction is required, as the attorneys are likely to win on the merits, the state won’t be harmed by it while the attorneys could suffer irreparable harm, the balance of hardships tips in favor of the attorneys, and the public interest is served by protecting constitutional rights, the brief said.

The Segal Law Firm and the Center for Constitutional Litigation PC represent the attorneys and client. No attorneys for Justice or Attorney General Patrick Morrisey (R) have been identified yet.

The case is Recht v. Justice, N.D. W.Va., No. 20-cv-90, motion filed 5/13/20.