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Bruce Shemrock

Trial Lawyer, Aronfeld Trial Lawyers

As a law firm that sues drug companies we were surprised to discover the U.S. Supreme Court ruled on June 23, 2011 that generic drug companies cannot be sued under state law over allegations that they failed to provide adequate label warnings about potential side effects. In the case they heard, the generic drug manufacturers argued that federal law barred these suits because the U.S. Food and Drug Administration (FDA) approved the subject name brand drugs, and that federal law requires generics to have the same labels as the name brand.

However, in 2009, the Supreme Court ruled that drug regulations do not protect pharmaceutical companies from being sued in state courts over drug labeling and failure to warn consumers of possible side effects. In this year’s ruling, the Court agreed with the generic drug manufacturers that, because of the federal labeling law, they had no choice but to put the same labels on their products as the name brand drug manufacturers. Generic drug companies are therefore protected from responsibility for failure to warn of possible side effects if such warnings do not appear on the name brand drug label.

Some argue that this will change the face of drug dispensing. Consumers with good insurance or the ability to pay may now choose to take the name brand to get the extra protection of the possibility of suit should something go wrong. Others opine that prices of generic drugs may fall due to this new-found protection from lawsuits.

Our Florida defective product lawyers advise our friends and clients, to now carefully consider the question, “Is generic okay?” when you have prescriptions filled. Are you willing to forfeit your right to a claim should something go wrong for the sake of saving a few dollars? Theoretically, you could have a viable claim for injuries and a perfect right to assert your claim for injury in court, but such claim is completely barred by this ruling if the drug that injured you was generic.