Supreme Court to Take Different Look at Generic Drug Manufacturer Liability

By Buck Daniel

March 20, 2013 – Two years ago, the Supreme Court severely limited the conditions under which consumers could sue generic drug manufacturers. The Pliva v. Mensing decision stated that generic manufacturers do not have control over a drug’s warning label content due to FDA regulations; and therefore, the companies cannot be sued for failing to alert patients to the risks of taking its drugs. However, a new case is before the Supreme Court testing a different theory of liability. The case, Bartlett v. Mutual Pharmaceutical Co., advances not a theory of  inadequate warnings, but one that claims the generic drug itself was defective. Bartlett comes to the Supreme Court on appeal regarding a decision by the United States Court of Appeals for the First Circuit that upheld a jury verdict for the plaintiff and argued that even if Mutual could not have changed the drug’s design, it had no obligation to continue selling a defective product. The results of this case has far reaching implications, because if the Supreme Court reverses the decision by the First Circuit patients will be left with very few options if they are injured by a generic drug. Which begs the questions, “Can you sue a generic manufacturer for any wrongdoing, no matter how disgusting their behavior?”