Supreme Court Grants Immunity To Generic Pharmaceuticals, Consumers Suffer Personal Injury

Personal Injury and Big Pharma

Many people think that the modern civil legal system is like a legal lottery. Clients with minor or no injuries at all sue and collect billions for trifling inconveniences. This perception is often enhanced by media, who reports cases appearing to be frivolous often without giving context or complete facts. While at the same time the media also fails to report cases where patients are severely injured but receive nothing at all. Recently a case such a case decided by U.S. Supreme Court in June 24, 2013 demonstrates this point. The case is Mutual Pharmaceutical Company Inc. v. Bartlett.

The facts of the case—which are not in dispute— are: The plaintiff Karen Bartlett “was given sulindac, an NSAID (non-steroidal anti-inflammatory drug), which is a generic form of Clinoril for shoulder pain. The defendant Mutual Pharmaceutical produces this drug. After taking the drug Ms. Bartlett soon developed an acute case of toxic epidermal necrolysis. Epidermal Necrolysis is a life threatening condition characterized by widespread eruptions under the skin leading to tissue death and permanent disfigurement. In Ms. Barlett’s case the results were horrific. More than half of her body’s skin was deteriorated; i.e. burned off or turned into an open wound. She spent months in a medically induced coma, had 12 eye surgeries, and was tube-fed for a year. After treatment the plaintiff is left severely disfigured, with a number of physical disabilities, and is nearly blind.

Bartlett sued the drug manufacturer Mutual and was awarded approximately 20 million dollars by a jury. However, she would never see one cent of it. The pharmaceutical company—with nearly unlimited resources and lawyers—appealed this case all the way to U.S. Supreme Court. The Supreme Court decided, with Justice Samuel Alito writing for the majority, that it would be too inconvenient for a pharmaceutical company producing generic drugs to remove their dangerous product off the market or petition federal law makers to allow them to alter the drug warnings or composition of the drug to make it safer. Thus the Supreme Court decided it would be better to shield a drug companies from liability than allow a horrendously injured person to recover any money for her life being ruined.

Reading through the opinion of the majority and shifting through the oral arguments it seems that a number of Justices prefer the drug liability system to go the way of the vaccine liability law. In other words they want congress to carve out yet another special court which would limit the ability for those injured to get damages and shield drug companies from paying monetary awards to the injured. Most people are unaware a special vaccine court exists which is funded by taxes paid by consumers of vaccines. These taxes are placed in a special fund and are paid out as the court sees fit. In this type of court there is no jury of peers, it is difficult to get through, and the awards are small. In this sense the whole reason for damages to penalize business for making unsafe products is circumvented and instead the people are taxed to protect drug company earnings. But this is what some of the Supreme Court Justices and no doubt industry prefers—a court where juries do not decide awards and drug companies are free to produce products (most of them deadly) without fear of being sued. One wonders how fair is it to require those who are injured to be taxed to care for themselves so those who injure them can continue to do business.  (Part 2 to be continued)


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Mark Perenich Personal Injury Attorney (727) 386-9675