Jordan Lipp | Attorney, Managing Member | Childs McCune
On March 16, 2018, the Massachusetts Supreme Court weighed in on the issue of whether a brand name drug manufacturer is liable for a plaintiff’s use of the generic form of the drug, and it reached a surprising result. As discussed in the previous blog post on December 22, 2017, Conte on Steroids, most states conclude that a brand name drug manufacturer cannot be liable for damages caused by the generic version of the drug. In a detailed analysis, the Massachusetts Supreme Court followed the vast majority of its sister courts, concluding that a brand name drug manufacturer cannot be held liable in product liability or negligence for a plaintiff who ingested the generic version.
But then, borrowing from case law involving such disparate subjects as landowner duties to trespassers and liability releases for sporting activities, the Massachusetts Supreme Court explained that “public policy is not served if generic drug consumers have no remedy for the failure of a brand-name manufacturer to warn in cases where such failure exceeds ordinary negligence, and rises to the level of recklessness.” Rafferty v. Merck & Co., No. SJC-12347, 2018 Mass. LEXIS 161, at *29 (Mar. 16, 2018). As such, the Court found that a brand name drug manufacturer can be liable for the generic version of the drug “where, for instance, a brand-name manufacturer learns that its drug is repeatedly causing death or serious injury, or causes birth defects when used by pregnant mothers, and still fails to warn consumers of this danger.” Id. at *29-30 (Mar. 16, 2018).
The ramifications of this novel approach are significant. Setting aside the fact that this decision comes from a court in one of the hubs of innovation in the life sciences, it is important to note that the decision is the very first of its kind. No other court has determined to bar negligence claims yet permit reckless claims with regards to brand name drug liability resulting from generic use. The Massachusetts Supreme Court even admits that it is “the only court” to make this distinction. Id. at *32.
While this is a new issue in the context of drug and device litigation, other types of litigation shed light on what the repercussions of this decision may be. As referenced above, this distinction of not permitting negligence claims but permitting reckless claims exists in the context of both sporting participants who have signed a release and trespassers who claim injury. On one hand, the higher standards in these types of cases has discouraged lawsuits and made summary judgment easier for defendants to obtain. On the other hand, requiring a plaintiff to meet a reckless standard certainly does not eliminate litigation. And, depending upon the situation and insurance policy, the reckless standard can have serious insurance ramifications as some insurance policies do not cover reckless conduct. The other question, of course, is whether courts in other jurisdictions may start to follow Massachusetts’ novel approach on brand name drug liability.
Regardless, for brand name drug manufacturers, it is a brave new world in Massachusetts.