AAJ: Generic Drug Immunity Disastrous for Patient Safety

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For Immediate Release: March 28, 2011

Contact: Jennifer Fuson
202-965-3500 x8369
AAJ Press Room


AAJ: Generic Drug Immunity Disastrous for Patient Safety

SCOTUS tackles important consumer and worker issues in generic drug liability, class-action, and railroad workers’ compensation cases this week

Washington, DCIf the U.S. Supreme Court grants the generic drug industry immunity for failing to warn of their drugs’ possible side-effects, patients will face a much greater risk in suffering injuries, according to the American Association for Justice (AAJ) as the Court is set to hear arguments in Pliva v. Mensing on Wednesday.  A result in favor of the drug industry could eliminate any incentive for generic manufacturers to ensure their drug is safe and adequately warns consumers of potential dangers.

“Granting complete immunity to generic drug manufacturers for would be a disaster for patient safety,” said AAJ President Gibson Vance.  “Knowledge is power, and consumers need adequate warning labels to make informed decisions about their healthcare.”

In 2009, the Supreme Court ruled brand name drug manufacturers bear the ultimate responsibility to maintain their warning labels; a decision for the generic drug manufacturers in Pliva v. Mensing would mean brand name and generic drugs are held to different safety and legal standards.  Over 70 percent of all prescriptions are filled with generic drugs, accounting for nearly 2.6 billion prescriptions every year.

Louis Bograd from the Center for Constitutional Litigation (CCL) is arguing before the Court on behalf of Gladys Mensing and Julie deMahy in Pliva v. Mensing.  CCL has also filed amicus briefs in Wal-Mart v. Dukes and CSX Transportation v. McBride on behalf of AAJ:

CSX Transportation v. McBride (March 28)

Monday, the Court will hear CSX Transportation v. McBride, a case examining when a railroad’s negligence can fairly be said to have to have “resulted in” harm to one of its workers.  Locomotive engineer Robert McBride filed a suit under the Federal Employers’ Liability Act (FELA), claiming his employer (CSX) was liable for a serious hand injury.  Congress passed FELA in 1908 with the purpose of making it easier for railroad workers to bring claims against their employers.

 “The lower court correctly upheld the jury’s verdict…. To adopt [CSX’s] novel construction would undermine Congress’s purpose in enacting this important legislation,” AAJ states in its amicus brief.

Wal-Mart v. Dukes: Class Action Size

Tuesday, the Supreme Court will hear arguments in Wal-Mart v. Dukes, the largest civil rights class action ever litigated.  Betty Dukes alleges she and hundreds of thousands of female Wal-Mart employees were deprived of pay and promotions because of a corporate-wide policy of gender discrimination.  Wal-Mart asserts that no such corporate-wide policy exists, that each individual Wal-Mart store acted alone, and that there can be no corporate-wide class. 

“Neither the size of modern organization nor the number of facilities they operate should affect whether the existence of discriminatory corporate-wide policies can be [decided] collectively,” said AAJ in its amicus brief. “Establishing, on a classwide basis, whether Wal-Mart acted in one discriminatory manner is speedier, less expensive. . . . The women of Wal-Mart should have the right to collectively sue for discrimination.  Forcing each individual’s case to be heard singularly only helps Wal-Mart and drives up litigation costs.”

For more information about any of these cases, or to speak with counsel or parties in Pliva v. Mensing, contact Jennifer.Fuson@justice.org, 202-944-2896.

As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.

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