The Mensing Conundrum: Litigating Generic Drug Injuries in California

Abstract

As long as there have been prescription drugs, people have suffered injuries caused by those drugs. While a perfect level of safety is just not possible, state tort laws have long provided protection to injured drug consumers and incentive to drug manufacturers to improve and maintain the safety of their products. However, the United States Supreme Court has recently revealed an alarming gap in this supposed consumer protection and safety incentive scheme. A series of cases now reveals that some state claims of injury resulting from a prescription drug are not preempted by federal law if the drug is a brand name, but are preempted if the drug is a generic. This incongruity in federal law may leave a consumer injured by a generic drug without a viable civil remedy. Consumers are likely to be completely unaware of the protections they are giving up when they accept a cheaper, generic prescription, leaving them at a significant legal disadvantage. Generic drugs continue to capture an increased market share of prescriptions, so the number of consumers affected by federal preemption will grow. This article will provide a brief history of generic drugs, outline the recent United States Supreme Court cases that have revealed the consumer protection problem related to generics, and address potential solutions for litigating generic prescription drug injury claims in California.