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June 24. 2013 7:02PM

Supreme Court tosses NH woman’s ‘tragic’ drug case


The U.S. Supreme Court ruled Monday that makers of generic drugs already approved by the FDA cannot be held liable under state law for claims of design defects, overturning Karen Bartlett of Plaistow's $21 million jury award. (UNION LEADER FILE)

The U.S. Supreme Court ruled Monday that generic drugmakers cannot be sued under state law for adverse reactions to their products, a decision that consumer advocates called a blow to patient safety.

In a 5-4 vote, the court ruled for Mutual Pharmaceutical Co, owned by Sun Pharmaceutical Industries Ltd, overturning a multimillion-dollar jury award to a Plaistow woman left disfigured and nearly blind who alleged a generic drug she had taken was unsafe based on its chemical design.

In the ruling, the justices said Bartlett’s situation was “tragic and evokes deep sympathy,” but added a straightforward application of pre-emption law requires that the judgment of the lower court be reversed.

The majority opinion, written by Justice Samuel Alito, said the state’s law could not run against federal laws on prescription medicines whose design has been approved by the U.S. Food and Drug Administration.

A prior Supreme Court ruling in 2011 found that pharmaceutical companies that make branded drugs are liable for inadequacies in safety warnings of a medicine’s label, but not the makers of cheaper copies of those medicines.

Consumer watchdog group Public Citizen said the Supreme Court decision on Monday undermines patient safety at a time when about 80 percent of U.S. prescriptions are filled with generic medicines.

“Today’s court decision provides a disincentive for generic makers of drugs to monitor safety of their products and to make sure that they have a surveillance system in place to detect adverse events that pose a threat to patients,” Michael Carome, director of Public Citizen’s Health Research Group, said in an interview.

He pointed out that, in many cases, the potentially dangerous side effects of medicines did not come to light until decades after they were approved and often after there was no longer a branded version on the market.

Mutual Pharmaceutical had asked the court to overturn a $21 million jury award to Karen Bartlett of Plaistow, who took Mutual’s generic non-steroidal anti-inflammatory drug, sulindac, in 2004 after her doctor prescribed it for shoulder pain. Sulindac is a generic version of Merck & Co Inc's Clinoril.

Bartlett suffered a rare hypersensitivity reaction three weeks after she started taking it. Her skin began to peel off, leaving her nearly blind and severely disfigured, with burn-like lesions over two-thirds of her body.

“It felt like I had sand in my eyes,” Bartlett, 53, told the New Hampshire Union Leader in March. Neither Bartlett nor her lawyer could be reached for comment Monday.

Keith Jensen, Bartlett’s lawyer, argued that the risks outweigh sulindac’s benefits and that there are more reports of reactions to the drug than to other similar drugs on the market.

Mutual, backed by the Obama administration, said federal law trumped state law claims such as those Bartlett had made, pointing to the fact that the drug had already won FDA approval with an agency-approved label carrying safety warnings. Federal law requires generic drugs to have the same design and warning labels as their brand-name equivalents, Mutual argued.

The high court agreed.

“Because it is impossible for Mutual and other similarly situated manufacturers to comply with both state and federal law, New Hampshire’s warning-based design-defect cause of action is pre-empted with respect to FDA-approved drugs sold in interstate commerce,” the majority decision said.


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