Schwartz, Goldberg & Silverman on Brand Name Drug Manufacturers Liability for Generics
Victor Schwartz, Phil Goldberg and Cary Silverman (Shook Hardy & Bacon) recently published Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drug Has Severe Side Effects in Fordham Law Review. The abstract provides:
Can a product manufacturer be subject to liability for a competitor’sproduct? American tort law has always said, “No.” It does not matter if theproducts are identical. Companies are not to be their competitors’ keepers.
Nevertheless, over the past few years, three courts have overturned thisfundamental of tort law, holding that a manufacturer of a brand-nameprescription drug can be subject to liability even when a plaintiff allegesthat he or she was harmed by a generic drug made by the brand-namemanufacturer’s competitor. Most courts, including four federal courts ofappeal and dozens of federal district and state trial courts, have rejectedthis expansion of tort law.
This debate has intensified since 2011, when the Supreme Court of theUnited States held that all duty to warn claims against manufacturers ofgeneric drugs are preempted by federal drug. The personal injury bar is hoping that courts will give competitor liability theories a new look,particularly when courts find that there is no other path for users of genericdrugs to sue.
This Article explains the reasons courts should continue resisting anytemptation to change state tort law to allow for competitor liability: (1) itis driven by a search for pockets for paying claims in violation offundamental tort law principles; (2) the overwhelming majority of courtshave continued rejecting competitor liability, even since the Supreme Courtruling; and (3) shifting liability to manufacturers of brand-name drugscould have significant adverse legal and health care consequences.
– SBS