As we have previously reported, the United States Supreme Court has held that manufacturers of generic medications cannot be found liable for failing to warn consumers of the risks associated with a drug they produce. Congress has proposed legislation that would effectively overrule this decision and allow generic manufacturers to be liable for injuries caused to consumers for failure to warn of potential risks.          

 Now, the high court is asked to consider generic manufacturers’ liability in the context of a defective design claim.  The court will consider the case of a plaintiff from Plaistow, New Hampshire. The plaintiff allegedly suffered a rare but severe reaction to the anti-inflammatory drug sulindac, a generic form of Clinoril, which caused nearly two-thirds of her skin to slough off, left her in a coma, and rendered her legally blind. The plaintiff has sued the generic maker alleging the drug’s design was dangerous and defective.  A New Hampshire jury awarded her $21 million and the First Circuit Court of Appeals upheld the award.

Pharmaceutical companies are watching closely as generic drugs account for 80 percent of all prescriptions in the United States according to the New York Times. Interest groups from both sides will continue to weigh-in prior to this month’s oral argument. Several Congressmen have made it clear that Congress intended for “state product liability laws to coexist” with federal drug approvals.