In a recent editorial piece, the New York Times articulated what injured victims and plaintiffs lawyers have been saying for the last year – Congress should not allow generic drug manufacturers special protections when those manufacturers fail to warn patients of the generic drug’s dangers. Last year, the United States Supreme Court ruled that although brand-name drug manufacturers could be held liable for failing to warn patients of their drug’s risks, federal law preempted claims that patients would have against the maker of the same generic drug. This has caused dozens of suits to be dismissed throughout the county, leaving patients without any legal remedy to pursue against the manufacturers of those drugs that caused injury.
The editorial urges the United States Congress to fix the disparity between the name-brand and generic drug liability issues by amending the Food, Drug and Cosmetic Act to make clear it was not Congress’ intent to pre-empt all failure to warn claims against generic drug manufacturers when it amended the 1984 law commonly referred to as the Hatch-Waxman amendments. Justice Clarence Thomas (widely considered one of the conservative justices on the US Supreme Court) wrote the majority opinion that held pre-emption applied, but also noted the distinction between name-brand drugs and generic drugs made “little sense” in the eyes of consumers. Most believe that consumers have no idea what legal rights they are giving up when they chose to opt for the less expensive generic drug at the pharmacy.
Our firm joins with the New York Times and encourages Congress to restore the rights of millions of Americans who take generic drugs, and over turn last year’s decision.