Adding Insult to Injury: Paying for Harms Caused by a Competitor’s Copycat Product
Abstract
Even though generic drugs now account for more than two-thirds of dispensed prescriptions, to date they have played almost no discernible role in products liability litigation. In the last few years, however, courts have begun to confront challenging questions presented when plaintiffs assert tort claims for injuries caused by the use of generic drugs, including negligent misrepresentation claims brought against the manufacturers of the brand-name versions of those products even though never used by the patient. Such cross-over litigation uniformly failed until a couple of years ago when the California courts allowed a plaintiff to maintain claims against only the brand-name drug manufacturer even though she had ingested only the generic version. This article explains the profound though not entirely self-evident illogic of such an approach.