Nearly a year after the case was argued before the U.S. Supreme Court, the front page of the New York Times reported on the “bizarre outcome” of PLIVA, Inc. v. Mensing, where the Court found that generic pharmaceutical companies cannot be held liable for failing to provide adequate warning labels with their drug products. The decision, issued by a sharply divided 5-4 Court, and authored by Justice Clarence Thomas, has been heavily criticized as creating an arbitrary distinction which leaves consumers who receive generic drugs (as required by many states’ laws and insurance plans) without a remedy if the drug unnecessarily causes severe injury.
The criticism is well-deserved considering that nearly 3 out of every 4 prescriptions written today are filled with a generic drug. While the Mensing decision dealt only with the issue of whether a generic drug company – whose label must be the same as the brand name drug’s – could change the information appearing in its label, many lower courts have interpreted it as providing virtual blanket immunity from liability for generic drug manufacturers. While these courts interpret the Mensing case as barring generic manufacturer liability, numerous other courts have found that generic manufacturers may still be subject to liability when their actions have contributed to causing an individual’s injury, such as by failing to include important warnings already appearing in the branded drug’s label, or for failing to alert physicians and consumers to the existence of new or strengthened warnings.
McGlynn Glisson & Mouton served as counsel to Mrs. Mensing before the U.S. Supreme Court, and has been instrumental in combatting the generic pharmaceutical industry’s attempts to evade responsibility for injuries caused by their drugs since the Supreme Court issued its decision last June. While the future of generic pharmaceutical liability is likely to remain uncertain for the immediate future, our attorneys are on the forefront of the issue, and can claim responsibility for the vast majority of district court opinions that have found liability against generic drug manufacturers to exist post- Mensing. As these issues continue to make their way through the courts of appeal, we will continue to fight tirelessly for those individuals who have been needlessly harmed by the actions (and inaction) of generic drug companies.