If you recognize the above phrase, you were a fan of early nineties Saturday Night Live. Purists will argue that the original SNL troupe was the best ever, but the 1991 cast including veterans Dana Carvey, Phil Hartman and Mike Meyers along with newcomers Chris Farley, Adam Sandler and Chris Rock make a strong case.
Also on the 1991 show was a writer named Jack Handey. More famous for his “Deep Thoughts’ segments, Handey also wrote a satire commercial about a toy called Happy Fun Ball. The commercial briefly described the joys of the normal-looking rubber ball and then detailed a series of disclaimers. Besides not taunting Happy Fun Ball, you were also warned, among many other things, not to look directly at the material inside Happy Fun Ball should it leak and to seek shelter if Happy Fun Ball begins to smoke.
The satire of 1991 has become the reality of twenty years later, thanks to lawyers, no doubt. Here is the middle third of a television ad for an anti-depressant called Abilify:
“Abilify is not for everyone. Call your doctor if your depression worsens or you have unusual changes in behavior or thoughts of suicide. Anti-depressants can increase these in children, teens and young adults. Elderly dementia patients taking Abilify have an increased risk of death or stroke.
Call your doctor if you have high fever, stiff muscles and confusion to address a possibly life threatening condition, or if you have uncontrollable muscle movements as these could become permanent.
High blood sugar has been reported in Abilify and some medicines like it. In some cases, extreme high blood sugar can lead to coma or death. Other risks include decreases in white blood cells, which can be serious, dizziness upon standing, seizures, trouble standing, and impaired judgment or motor skills.”
The ad features cartoon characters, one being a sad looking bath robe with eyes meant to symbolize depression. Along with the patient, the bath robe sits taking notes during the disclaimer portion of the ad, and apparently we are all meant to do so as well.
The unusual thing about this ad is that it is not all that unusual. We’ve become accustomed to being warned that the medicine we take can disable or kill us. Abilify, as maybe the ultimate cure for depression, can apparently kill you three different ways.
The new side-effect here seems to be “uncontrollable muscle movements” that “could become permanent.” What could that possibly mean? Well, you’ve been warned, twitchy.
The legal effect of these warnings is somewhat less clear. Disclaimers fall into the realm of contract law – you are agreeing to assume certain risks by using the product. But can you contract to allow someone or something to kill you? Would a jury accept the drug company’s argument that you had been warned? Probably not. Certainly not in California or New York.
The same is true when you sign a waiver at the doctor or dentist’s office. If the dentist accidentally causes you to bleed to death while crowning a tooth, does the waiver you signed bar recovery for your family? The lawsuit against a dentist in Ohio would be for negligence. It’s hard to imagine a waiver where a patient effectively consents to an injury caused by negligence.
My theory is that disclaimers like the one for Abilify are made to discourage the kinds of people that would sue a company over a headache from taking the drug in the first place. Those seeking lawsuit cash-outs generally aren’t seeking it for their heirs. And if you have already been warned that Abilify could kill you, then you are fortunate to get off with just a headache anyway.
If Abilify causes any of what is warned, you might still want to contact a personal injury lawyer. But please, do not taunt Abilify.