In the past few years, the U.S. Supreme Court has made life even tougher for victims of injuries caused by generic prescription drugs. In PLIVA v. Mensing, the Court barred all failure to warn claims from people injured by generic drugs, reasoning that a verdict for the plaintiff in a defective drug lawsuit is essentially a new state law requiring a new label. This would put the state law in conflict with FDA regulations, and because the relevant law expressly makes FDA regulations supreme, the Court ruled that this means generic patients cannot sue, even though people hurt by the name-brand drug may still sue. This year, the Court clarified with Mutual Pharmaceutical Co. v. Bartlett that other claims against generic manufacturers must be dismissed as preempted when they are essentially still failure to warn claims. The Tenth U.S. Circuit Court of Appeals appealed to these precedents when it upheld dismissal in Schrock v. Wyeth et al..
Susan Schrock of Oklahoma was prescribed Reglan (metoclopramide) three times from 2000 to 2005, and each time received a generic equivalent. In 2005, she was diagnosed with a neurological problem that was later determined to be tardive dyskinesia caused by Reglan, a known side effect. Tardive dyskinesia is an incurable disorder characterized by uncontrollable movements, especially of the face. The Schrocks filed a dangerous drug lawsuit a year after her formal diagnosis, alleging negligence, breach of warranties, fraud and misrepresentation as well as failure to warn. The district court granted summary judgment to name-brand defendants because Schrock never used their products. It also granted summary judgment to generic defendant PLIVA, under the statute of limitations, and later dismissed claims against generic defendant Qualitest as preempted. The Schrocks moved to reopen the case in 2012, and now appeal from that dismissal.
Applying Oklahoma law, the Tenth Circuit upheld all of the summary judgment rulings. Oklahoma’s two-year statute of limitations has a discovery rule, but discovery starts when the plaintiff first gets an inkling of the cause. Thus, although Schrock was not formally diagnosed until 2007, the court found that Schrock’s statute began ticking in 2005, when a doctor told her that her diagnosis was “quite possibly” related to Reglan. This logic applies to PLIVA and to non-warranty claims against Qualitest. The Tenth went on to agree with most (though not all) courts around the country that brand-name manufacturers Wyeth and Schwarz owed no duty to Schrock because she didn’t use their products. Finally, it upheld dismissal of the breach of express and implied warranty claims against Qualitest as impliedly preempted. The complaint and the Oklahoma statute both rely on changes to the labeling, so the Tenth ruled that such claims are failure to warn claims in disguise.
The attorneys at Carey, Danis & Lowe represent clients in pharmaceutical liability lawsuits like this one, both generic and name-brand. Since the Mensing decision, however, our clients have been artificially divided into two groups: one injured by name-brand drugs and another injured by the generics that are supposed to be their exact chemical equivalents. As the Tenth Circuit observes at the end of its opinion, this puts people like the Schrocks in a catch-22 situation: they can’t hold anyone responsible for the serious and very real injuries they’ve suffered. The Tenth agreed that this is an unfair situation, but said state courts or Congress hold the solution. But in the meantime, generic manufacturers will continue to escape responsibility for knowingly releasing drugs with life-altering dangers into the market.
If you or someone you love suffered a serious health problem from taking a medication you thought you could trust, don’t wait to call Carey, Danis & Lowe. For a free, confidential consultation, you can send us an email or call 1-877-678-3400 today.
Similar blog posts:
Eighth Circuit Resurrects Tort Claims Against Generic Reglan Makers – Fullington v. Pfizer et al.
Patient May Not Sue Name-Brand Manufacturers Over Generic Reglan, Eleventh Circuit Rules – Guarino v. Wyeth et al.
Appeals Court Permits Breach of Warranty and Defect Claims Against Drug Manufacturer – Bell v. Pfizer