ABA Journal


U.S. Supreme Court

Chemerinsky: Paradox in drug injury cases must be solved by Congress, says SCOTUS

Sep 4, 2013, 02:10 pm CDT


This is a nice summary but it is too generous to the SCOTUS majority. Bottom line: the conservatives justices hate plaintiffs, hate plaintiffs' lawyers, and will do everything in their power to bash the courthouse doors into their collective faces as they have proven time and time and time and time and time and time and time and time again.

By mr. magoo on 2013 09 04, 5:15 pm CDT

Mr. Magoo, your summary is just a skosh too miserly, yes?

By WMantooth on 2013 09 05, 5:01 pm CDT

I don't think liability should be directed at generic drug makers as they are in no position to truly make a drug safer or even properly test it's potential risks to enhance warning labels. With 90% of prescriptions alreafy being filled by generics it's clear that the public policy objective should be to place design defects and adequate warning squarely on the shoulders of the companies who are at the moment incentivized to keep their label off their products and use 'unaffiliated' third parties to make and sell their drugs, avoiding liability altogether.

By Michael on 2013 09 06, 2:00 pm CDT

Can the plaintiff sue the brand name drug maker that established the standard for safety warnings, even if she did not take the brand name drug?

By Leah on 2013 09 06, 3:33 pm CDT

"Solved by Congress" = Written by pharmaceutical lobbyists and greased through with campaign "contributions."

By Charles on 2013 09 06, 5:25 pm CDT

I thought a generic drug must be shown to be either identical OR Bioequivalent to its name brand counterpart to gain FDA approval.

"But the maker of a generic drug can not redesign it; federal law requires that it must be identical to the brand name version for it to be sold."

Did Alito miss the mark here as it relates to bioequivalent drugs?

By StLawyer on 2013 09 06, 7:04 pm CDT

Edifying. I could be wrong, but I believe that I understood every word. Very well written.

By Tom Youngjohn on 2013 09 06, 9:06 pm CDT

It seems like half of television now consists of pitches for various drugs and medical devices, coupled with pitches by law firms suing the manufactures of those drugs and devices. I am not sure a conclusion can be drawn other than that Congress and the FDA have failed, and lawyers are now attempting to regulate the runaway pharmaceutical machine with sporadic tort suits, on a case-by-case basis.

By B. McLeod on 2013 09 07, 10:16 pm CDT

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