A series of cases have been heard by the U.S. Supreme Court that required them to deal with the question of when state tort law liability for those injured by prescription drugs is preempted by federal law. The issue centers around one main detail in each case, whether the drug taken was the brand name version or the generic version. The Court ultimately has drawn a distinction that generic drug supporters will not be happy with. The Courts rulings conclude that those who use a brand name prescription drug and are injured because of the drug may sue, while generic drug prescriptions that cause injury leave the victim without recourse against the manufacturer.
In 2009, the Court addressed Wyeth v. Levine, a case in which a woman was administered a prescription drug to counteract pain and nausea, but the prescription ultimately lead to her developing gangrene. The Court held that the drug company was liable for failing to provide adequate warnings to patients. Merely having the label approved by the Food and Drug Administration does not preclude a brand name drug manufacturer from being sued for failure to adequately warn potential users.
However the Court only two years later in Pilva v. Mensing, two women who had developed tardive dyskinesia sued the generic drug manufacturer for failure to warn of the drug’s risk, held the manufacturers of generic drugs are preempted by federal law.
The Court has asserted that along with failure to warn generic drug manufacturers are preempted from design defect suits by federal law. The result for the public is that no matter how badly a generic drug injuries an individual they are not afforded the right to sue for just compensation.
If you or a loved one has been injured and those injuries are the result of prescription drug use please call us today.
Wooten Kimbrough, P.A. Orlando Pharmacy Error Attorneys
