In June 2011, the U.S. Supreme Court held in Pliva v. Mensing that injured patients' state-law failure-to-warn claims against generic-drug manufacturers are preempted by federal law because the Food and Drug Administration requires those manufacturers to use labeling that is the same as the brand-name labeling. This opened the door to claims by generic drug users against manufacturers of name brand drugs even if the plaintiff did not take the name drug.
Now the Alabama Supreme Court has put the issue right at the forefront in a case that is likely to have important national implications. In a case called Wyeth v. Weeks, available here,
the Court held that the user of a generic drug can sue the manufacturer
of the equivalent brand name medication even if the plaintiff only used
a generic equivalent.
Defendants and their supporters immediately began to cry foul arguing that this could result in a defendant having to pay for injuries that were not caused by their product. See here, for example.
The argument sounds reasonable at first but I don't think it is that simple once you think about the reasoning behind the plaintiff's claim-that the name manufacturers are the ones who determine what the awnings of the generic products are going to say. If that is true, and if the warning was inadequate, then you can argue that the conduct of the brand name manufacturer did contribute to cause the injury.
Of course, that's two big "ifs" in that sentence, but I don't see anything wrong in allowing the plaintiff a chance to prove them. The one weakness in the plaintiffs' claim, though, might be a recent study that says that, even though generics manufacturers are required to use the same warnings used by brand name manufacturers, the reality is that few actually do. If the generic drug manufacturer changed the warning unilaterally, the brand name one should be able to claim that was not its fault.
The New York Times has more on the story here. AboutLawsuits also has more on the story here.