Consumers Injured by Generic Drugs May Not Get Their Day in Court
The 7th Amendment to the US Constitution guarantees the right to trial by jury in civil cases. A similar right is enshrined in the constitution of most states.
So why has it become harder for so many people to exercise their constitutional rights to gain access to the courts after being injured through no fault of their own by defective products?
A case in point: On June 23, 2011 the United States Supreme Court ruled that any consumer injured by a generic drug on a claim that the drug manufacturer failed to provide adequate warnings about the dangers associated with that drug is barred from making a claim.
That means that if you take a generic prescription drug and suffer a horrible injury that the drug company knew about but failed to warn you about, you will not be able to make a claim and will not receive any compensation for your loss.
The case, Pliva, Inc., ET AL. v. Mensing, involved a woman who developed a severe and permanent neurological condition called tardive dyskinesia as a result of taking a generic form of the Reglan, a drug prescribed for digestive tract problems. The manufacturer of the generic drug failed to adequately warn consumers of the risk of this condition even though it long knew of this problem and its relationship to this drug.
The drug company argued that because the label was approved by the U.S. Food and Drug Administration, claims by injured people should be barred. Two intermediate courts of appeal ruled against the drug company and said the FDA approval should not limit the rights of people harmed by the drug.
The conservative majority of the U.S. Supreme Court overruled the two appellate courts and created a novel rule that essentially states that so long as the FDA approves a label, anybody harmed by the drug is essentially out of luck. In other words, your right to a trial by jury is substituted by the decision of underfunded and understaffed bureaucrats at the FDA.
And it’s not even the FDA’s fault. The FDA depends on data about drug complications from the drug manufacturer. If the company fudges the data or doesn’t get the right data in the first place, the FDA lacks the necessary information to evaluate the need for and substance of the warnings in the first place.
How could this be? The short answer is that the five of the U.S. Supreme Court justices (the majority) are extremely pro-business and anti-consumer and have gone out of their way to create novel theories that restrict access to the court house by average Americans.
So what can you do about it? Begin to learn about how big business and conservative politicians have expended hundreds of millions of dollars on so-called “tort reform” campaigns intended solely to limit access to the courts and influence juries. A good place to start is by watching a new documentary aired recently on HBO entitled Hot Coffee. Read more about this excellent production at http://www.hbo.com/documentaries/hot-coffee/index.html.
