Burg Simpson Responds to the United States Supreme Court Decision to “Shield” Drug Companies

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As one of the nation’s leading pharmaceutical litigation law firms, Burg Simpson responds to the Supreme Court's ruling in the cases of PLIVA Inc. v Mensing, 09-993, Actavis Elizabeth LLC v. Mensing, 09-1039 and Activis, Inc., v. Demahy, 09-1501. The United States Supreme Court ruled in a 5-4 decision that makers of generic drugs cannot be sued for failing to warn consumers of the possible side effects of their products, so long as they use the same warnings used on the brand-name equivalents.

The Court’s decision may now prevent millions of Americans - seriously harmed by generic drugs - from seeking adequate compensation for their injuries - Diane V. Smith

On June 23, 2011, the United States Supreme Court ruled in a 5-4 decision that makers of generic drugs cannot be sued for failing to warn consumers of the possible side effects of their products, so long as they use the same warnings used on the brand-name equivalents. The irony of this decision is that brand-name drug manufacturers can be held responsible for their failure to warn consumers about the dangers of a particular drug, where generic manufactures are now provided protection that the brand-name manufacturer does not have.

"The seriousness of this opinion given in the cases of PLIVA Inc. v Mensing, 09-993, Actavis Elizabeth LLC v. Mensing, 09-1039 and Activis, Inc., v. Demahy, 09-1501 cannot be ignored. The Court’s decision may now prevent millions of Americans - seriously harmed by generic drugs - from seeking adequate compensation for their injuries, long-term care, and rehabilitation," said Burg Simpson Attorney, Diane V. Smith.

According to Justice Sotomayor, "today's decision affects 75% of all prescription drugs dispensed in this country." Justice Clarence Thomas acknowledged that: "Had [the injured patients] taken Reglan, the brand name drug prescribed by their doctors ... their lawsuits would not be pre-empted. But because pharmacists, acting in full accord with state law, substituted generic metoclopramide instead, federal law pre-empts these lawsuits. We recognize that from the perspective of Mensing and Demahy, finding pre-emption here but not in [the case of a brand name drug] makes little sense."

In their dissent, Justices Sotomayor, Ginsburg, Breyer and Kagan blasted the Court’s decision, stating, “As a result of today’s decision, whether a consumer harmed by inadequate warnings can obtain relief turns solely on the happenstance of whether her pharmacist filled her prescription with a brand-name or generic drug. The Court gets one thing right: this outcome makes little sense.” “In some States, pharmacists must dispense generic drugs absent instruction to the contrary from a consumer’s physician. Even when consumers can request brand-name drugs, the price of the brand-name drug or the consumers’ insurance plans may make it impossible to do so. As a result, in many cases, consumers will have no ability to preserve their state-law right to recover for injuries caused by inadequate warnings."

Burg Simpson believes that “drug companies continue to exploit our legal system in search of their goal of encompassing themselves in an legal shield, that absolves them of any blame and accountability when ordinary, unsuspecting citizens are harmed.”

Burg Simpson has successfully litigated defective product lawsuits, pharmaceutical and devices cases for more than 30 years in state and federal courts and in the multi-district litigation arena. The firm’s award-winning attorneys have been appointed to lead numerous dangerous drug cases in recent years, including litigation involving the Yasmin and Yaz birth control pills, gadolinium based contrast agents, DePuy ASR Hip Implant, Ortho Evra birth control patch, ReNu with MoistureLoc contact lens solution, Vioxx, Heparin, Zyprexa, Bextra/Celebrex, Fen-Phen, and others.

With offices in Denver, Cincinnati, Cody, and Phoenix, Burg Simpson has a team of nearly 100 lawyers, paralegals, nurses and support staff dedicated to helping individuals, from across the United States, seriously harmed by defective pharmaceutical products and medical devices.

Cases: PLIVA Inc. v Mensing, 09-993, Actavis Elizabeth LLC v. Mensing, 09-1039 and Activis, Inc., v. Demahy, 09-1501.

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