Generic Drug Injustice for All prevails in the U.S. The heartbreaking video below shows just a few of the thousands of victims of multi-national drug companies insulated from tort liability – in PLIVA v. Mensing (June 2011) and Mutual Pharmaceutical v. Bartlett (June 2013) – by the extreme Supreme Court five. These five men will go down in history as those who vote in favor of multi-national corporations at the expense of U.S. citizens. Antonin Scalia, John Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito. Generic drug companies should hang portraits of them on their executives’ walls (if they haven’t already), or erect statues of them around the swimming pools of their vacation homes.
Victims of Generics & the Supreme Court Five
If most Americans might like to think the people horribly injured above have no relation to them, they would be mistaken. The companies which make Americans’ prescription drugs – 80 percent of prescriptions are filled with a generic – now have virtually no incentive to be sure those drugs are safe and effective. The two 5-4 Supreme Court decisions along ideological lines have fixed it that way. Multi-national drug companies have been granted a free pass by the high court when those companies make a drug that harms people. In addition, many insurance companies require one to get a generic version of a drug if a generic is available, even if the generic is more expensive than the brand name drug.
Great for Corporations, Awful for Citizens
Drug “side effect” problems, as in the case of Reglan (generic: metoclopramide) often don’t clearly surface until the patent rights run out, and by then most of the companies that still make that drug are generic drug companies. That’s good news if you own a generic drug company, potentially catastrophic if you’re a human being hurt by a generic drug, as in the case of generic Reglan victims in the above video.
Nobody is Responsible Now
These high court decisions leave generic drug regulation in a Wild West state, where it is every person for herself, and the devil take the hindmost. A report released by the consumer advocacy group Public Citizen has listed 434 generic drugs for which no brand-name product remains on the market. That means no company can initiate changes in the drugs’ warning labels to indicate freshly discovered risks. The generic companies have an obligation to notify FDA concerning any risks they detect so that the agency can work with them to modify the warning labels, but no generic company has ever been warned or sanctioned for not notifying FDA. Consequently, there’s little, if any, incentive, to take corrective action and keep us protected from troublesome generic drugs.
Let them eat Cake
Just try to follow the high court’s logic or sensibility about how things work in the real world. The Supreme five ruled that generic drug companies can continue to make billions in profits without accepting any responsibility for their products. It is a situation unheard of in any other industry, and the fact that it now obtains in the pharmaceutical drug industry is astonishing, absurd, a complete miscarriage of justice. Apparently for dark humor, the court mentioned in both decisions, the first written by Clarence Thomas and the second by Samuel Alito, that Congress can take action, if it wishes, to change the law to hold generic drug makers accountable. Even if that were to happen, and it is highly unlikely that it ever could with one of the most unproductive, embittered Congressional bodies in the history of the country, it would be too late for those already injured by generic drugs.
Generic Drug Injustice for All
Previous to the pro-business/anti-citizen Roberts court, the high court had accepted for 100 years the existence of tort law to protect people from drug companies who may injure them. The court had always begun with a presumption against preemption, as Ruth Bader Ginsberg pointed out in the objection she penned for the minority four in the Mensing decision.
The high court members are as astute as anyone in Washington about the difficulties of passing new legislation. That is why it is worse than insulting that they threw that insincere bouquet onto the coffin of justice their 5-4 votes buried. It is possible that Congress could retroactively make generic companies responsible for the drugs they make, but it is nearly impossible to get such legislation introduced and passed, even with a productive Congress.
Please Take Action
Please watch the video above to see what sorts of injuries the high court has decided nobody is responsible for, then write or call your Congressional representatives to demand some decisive action to help victims of generic drugs find justice that the Supreme Court five continues to deny. Or write or call the FDA and demand the agency change the law to protect us from dangerous generic drugs by holding the companies that make them accountable.