In December 2017, Public Justice won a landmark decision from the California Supreme Court holding that pharmaceutical giant Novartis can be held liable for injuries caused by a mislabeled generic version of one of its drugs. In T.H. v. Novartis, a unanimous court held that, because Novartis controls the label on the generic drug that injured the plaintiffs, it can be held liable for injuries caused by the generic drug, even though it didn’t make the actual product. That landmark decision has made waves all across the country.
But we believe consumers everywhere, and not just in California, should be able to hold pharmaceutical companies accountable for dangerously mislabeled generic drugs. Over the past 20 years, more than 100 state and federal courts have held that consumers of generic drugs have no right to sue any drug company for their injuries. These courts have held that consumers can’t sue generic drug companies because, under federal law, brand-name drug owners write the labels for all drugs, both the brand-name and generic version. But they’ve also held that consumers of a generic drug can’t sue the brand-name company because it didn’t make the actual pill that caused the injury. This Catch-22 has stripped millions of consumers of generic drugs of any remedy in court.
We believe that’s wrong, and we’re fighting to change it.
That’s why, on the heels of our victory in Novartis, we took our arguments to another state Supreme Court, this time in West Virginia, in the case McNair v. Johnson and Johnson.
Earlier this week, the West Virginia court ruled – by a 3-to-2 – vote that it doesn’t matter that the defending brand-name drug company wrote the label on the generic drug that injured the plaintive. What mattered, said the court, is that it didn’t make the actual drug that caused the injury.
The ruling leaves our client – for now – without any remedy at all. And it means that no consumers of generic drugs in West Virginia have any remedy against any pharmaceutical company going forward, no matter how bad their injuries and how misleading the drug’s label.
But that was just round one, and we’re not done yet.
Two dissenting justices wrote a fiery opinion denouncing the majority ruling, calling it “appalling” and contrary to public health and safety. We agree.
That’s why we are planning on filing a petition for rehearing in the case; we believe the majority’s opinion is riddled with legal errors. And though we know that getting a state High Court to reverse itself is difficult, we think this is one of the rare cases where reversal as possible.
The stakes could not be higher for West Virginia consumers, and we’re determined to push forward for them.
From California to West Virginia, Public Justice is proud to be leading the fight to get consumers of mislabeled generic drugs the right to recover damages from the brand-name manufacturer that wrote the drugs dangerous label in the first place. For patients harmed by those drugs, winning could be a matter of life or death.
Public Justice’s Leslie Brueckner is counsel on ‘McNair’ along with Rich Lindsay of Tambor Lindsay and Associates of Charleston West Virginia. Brueckner and Ben Siminou of Siminou Appeals are counsel for plaintiffs in ‘Novartis,’ for which they will receive the 2018 Pound Institute for Civil Justice Appellate Advocacy Award.