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In a 5-4 decision, the U.S. Supreme Court ruled on June 23 that generic drug manufacturers may not be sued for failure to alert consumers about the possible risks of their medications as long as they use the same warnings as the brand-name equivalent drugs. Ironically, the makers of brand-name medications may be held liable for harm or wrongful death caused by a particular drug if consumers were not warned of its dangers. These cases are often deemed defective drug lawsuits that pertain to product liability and a manufacturer’s responsibility to ensure that their products are safe when used as directed. As Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan noted in their dissent, “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 decision is especially problematic when you consider varying state and insurance company regulations on the dispensing of brand-name medication versus generic versions of the same drug. The dissenting justices addressed this as well: “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.” The decision affects a majority of prescriptions, as nearly 75 percent of all prescription drugs dispensed in the United States are generics. As Louis Bograd of the Center for Constitutional Litigation told the Los Angeles Times in a June 24 article, “Three out of four patients just lost the right to sue” should they be harmed by a generic drug that came without adequate warnings. If you have suffered the harmful side-effects or a family member has died after taking a defective prescription medication, please contact the Mobile, Alabama, defective drug attorneys at Long & Long for a free case evaluation.

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