The current conservative Supreme Court is quickly becoming known as the “5 to 4 Team” because on every decision that protects big corporations while stepping on the rights of individuals, the five conservative justices issue the majority opinion. The latest travesty is contorting interpretations of prior case law and FDA regulations (who are the judicial activists now??!!) and results in protecting generic drug manufacturers from being sued –whereas the original brand label manufacturers are liable. The decision and implications are too complicated to discuss in this space, but we note that Justice Thomas, who authored the decision, readily admits the decision “makes no sense.”
Our clients who have taken generic drugs now risk having their cases dismissed: metoclopramide, alendronate, risedronate, ibandronate, isotretinoin, propoxyphene among other. In fact, 70% of all prescriptions each year are filled with a generic drug. However, our trial team and briefing lawyers are combining with forces around the United States to attack this decision in local state courts by exploring using alternative claims. Judge Higbee in Atlantic City, New Jersey and Judge Moss in Philadelphia, Pennsylvania will become the battlegrounds for defending our clients’ rights. Legal theories will include liability of the brand label manufacturers as well as liability theories against the generic manufacturers which don’t rely on label inadequacies. At this point, the FDA could easily modify their regulations, but we expect this to be a slow process, if it is to happen at all.