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Defective (BAD) drugs and device Recalls - what should you know?

Updated April 26, 2017
One of the biggest obstacles faced by the defective medical device and bad drug attorneys at is the issue of generic drugs. Nearly 8 in 10 prescriptions filled in the US are for generic drugs. Many popular drugs are nearing the end of their patents and expects this number to rise. Generics are generally thought to be as effective as the branded drug.

The question faced by our attorneys, and our clients, is which company, if any, is liable when personal injury or death follows taking a generic drug. The drug may be equivalent to the original drug but who is responsible? The original manufacturer or the generic manufacturer?

The answer may be neither. Even a bad drug, if generic, may not lead to compensation. Two US Supreme Court cases insulate the generic makers from responsibility, so long as they included the branded drug maker’s warnings. In PLIVA, Inc. v. Mensing, 564 U.S. 604  (2011), the Supreme Court held that federal drug regulations applicable to generic drug manufacturers directly conflict with, and thus preempt, state-law tort claim alleging a failure to provide adequate warning labels. In Mutual Pharmaceutical Co. v. Bartlett, 570 US 2468 (2013), he Supreme Court held that generic drug manufacturers cannot be held liable under state law for not adequately labeling medication when federal law prohibits them from changing the label from the original brand name drug.

Only in California, Vermont, and Illinois have Courts accepted the notion of “innovator liability,” imposing liability on the branded drug maker for injuries caused by a generic drug equivalent. In these three States, the Court held that the branding company controlled the text of the warning labels.

This issue is a common one. Most people taking a drug don’t know if they have taken a branded drug or a generic drug. There are many legal, and factual, issues involved.

If you have been injured after taking a drug, contact the bad drug attorneys at for a free consultation. This issue requires us to not obtain your medical records but often we have to do substantial research. However, the general rule is that the makers of generic drugs do not have liability for your injuries.

Be careful what you sign: Don’t sign a waiver or any other document before talking to a lawyer. Anything you sign may may keep you from filing a lawsuit against the manufacturer.

If you call a helpline representative be careful! Medical device makers collect information from you during these calls. It’s not uncommon for them to try and use this information to limit your claims. Remember that you may not yet know the full extent of your injuries. It’s best to talk to a lawyer first to avoid saying anything that could hurt a future claim.

Device makers often have close relationships with doctors. It’s not unheard of for Doctors to sometimes help device makers or pharmaceutical companies. Your doctor may have records, or the device itself, that could help the manufacturer. Doctors may also try and talk you out of filing a lawsuit. We are not saying to distrust your Doctor but you should only take legal advice from your lawyer.

Compensation is usually limited under recalls. In fact, compensation offered Under a recall may not cover your future medical expenses and other losses. If this is the case, a lawsuit may be the only way to be compensated. For example, a a device or drug recall notice may not cover losses like lost wages or pain and suffering. A company may offer to pay some of the “necessary” medical costs but these may only be a fraction of what is needed. You may choose treatment other than what’s offered under the recall. You need to talk to your doctor, and perhaps get a second opinion, before choosing to get revision surgery. Make sure the treatment that’s being suggested is appropriate for you.

Our award-winning attorneys have successfully represented victims of dangerous drugs and have the experience and resources needed to handle these complicated matters. Click here to learn more about Difference. Call now to speak with an experienced legal professional for free.

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