Clarence Thomas, PLIVA v. Mensing, and the Plight of the Consumer
Today the Supreme Court denied the 70 percent of Americans who take generic prescription drugs the right to sue those drug companies for failing to adequately warn of possible side effects.
The Supreme Court denying consumers a day in court? Never, never in a million years. Sadly, it seems to be happening on just about a daily basis. In yet another anti-consumer 5-to-4 decision, the conservative majority, led by Justice Clarence Thomas, sided with generic drug companies, shielding them from liability for failing to update their labels even in response to overwhelming evidence of side effects.
In this latest installment of “Strip Consumers,” Gladys Mensing’s prescription for heartburn medicine caused her to develop a severe and irreversible neurological disorder that causes uncontrollable physical movements. If Ms. Mensing had been prescribed brand-name Reglan, she would have had grounds to sue the company for failure to warn. But because she took a generic version of the drug, manufactured by PLIVA, her case cannot be heard in state court, according the opinion written by Justice Thomas.
Abusing (oops, I mean using) the Supremacy Clause (or “preemption”), the Court decided that Congress meant to create two different sets of laws for the same drug when it passed the Hatch-Waxman Act. The act requires generic drug labels to be identical to the labels on corresponding brand-name drugs. So if Reglan doesn’t warn consumers of possible serious side effects, PLIVA doesn’t have to either — and unlike Reglan, PLIVA can’t be sued for ignoring evidence of side effects.
Does Ms. Mensing, along with all other Americans who take generic prescription drugs, deserve less access to the courts simply because she spent less money on her prescriptions?
Clarence Thomas, once again jettisoning his longstanding principles to reach an expedient result, broadly interpreted federal preemption to cover a wider swath of claims. By doing so, he turned the statute on its head, transforming a federal law meant to increase the safety of prescription drugs into one that does the opposite. The same Clarence Thomas who made a career as a darling of the Republican Party, championing the rights of the states over the federal government.
Get used to it folks. Give this Court another five years and consumers may just take to the streets since the doors to the courthouse will be nailed shut.
Assisted by Natasha Duarte
Steven N. Berk has over twenty years of litigation experience spanning both the private and public sectors. His practice ranges from representing Fortune 500 Companies, to consumers. Steven is based in Washington, D.C. and founded Berk Law in May 2009....
