Could Preemption Rulings for Generic Manufacturers Be Bitter Pill for Name-Brand Manufacturers?

For more than a decade, courts across the country have rejected the premise that a manufacturer of a name-brand medication is liable for injuries resulting from a plaintiff's use of the generic version of that medication. Until recently, courts declined to hold that the generic manufacturer could escape liability for the medication's warnings based on its similarity to the name-brand label. In a June 17, 2008, opinion, however, the District Court of Minnesota joined what may prove to be a trend of decisions finding that inadequate warning claims against generic manufacturers are preempted by a conflict with federal law.

The application of these two doctrines—one that applies to name-brand manufacturers and the other to generics—may well result in cases where a plaintiff alleging injury from generic medications based on inadequate warnings can recover from neither manufacturer. In fact, that is the very result that was reached in the District of Minnesota case, Mensing v. Wyeth, at ... more.

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