The answer is not always clear. In some circumstances the answer could be yes, but in many others it could be no.
Generic drugs, the discount versions of trade-name drugs, make up 80% of prescriptions today. Over the past several years, dozens of generic drug lawsuits have been dismissed.
Generic Drug Makers Are Generally Not Liable for Generic Drug Injuries
Our U. S. Supreme Court decided a few years ago that generic drug companies have what we call immunity, meaning that someone who has taken a generic drug and is injured by that drug cannot pursue a claim against the manufacturer.
Some states, for example California, allow for their citizens to pursue a claim against a generic drug company. There are a few other states, including Vermont, that also do the same thing. Otherwise, as a general rule, if you took a generic drug you may be prohibited from pursuing a claim for an injury arising out of the use of that drug.
The rationale of the U.S. Supreme Court was that the warnings that are on the generic product were actually developed by the company that made the name brand product. Current law states that generic drug manufacturers must have labels identical to those of their brand-name colleagues. All safety information or warning labels must be exactly the same as the FDA approved version of the brand name product at all times.
Name Brand Drug Makers Are Not Liable for Generic Drug Injuries
Unfortunately, if you are taking the generic drug you cannot pursue a claim against the company that made the original product.
So as a general rule, a brand name drug company cannot be held responsible for injuries caused by the use of its competitor’s generic product. This creates a catch-22, where the generic drug company has immunity and you cannot pursue a claim against the company that innovated or actually developed the drug. You are left without a remedy.
Revisiting the Generic Drug Lawsuit and Immunity Issues
On a positive note, there are several things ongoing now in Congress to try to change the laws regarding immunity and liability of generic drug products. This would allow generic drug companies to be responsible for the drugs that they are selling. Right now as the law stands they have immunity.
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