In a victory for consumers, last Friday the Fifth Circuit Court of Appeals agreed with the lower court that individuals may sue generic drug makers in state court for the "failure to warn" consumers of of potentially dangerous side effects from taking their drugs. This decision shadows last March's Supreme Court decision in Wyeth v. Levine, which held that federal law did not pre-empt state law failure to warn claims against pharmaceutical companies.
The U.S. Fifth Circuit of Appeals joins a handful of federal district courts that have extended Wyeth v. Levine to cover generic drugs. However, the issue has divided a "rapidly growing" number of district courts which may increase chances of Supreme Court review.
The Tenth Circuit Court of Appeals has not yet weighed in on whether Wyeth v. Levine extends to generic drug manufacturers.
However, as dedicated personal injury attorneys concerned about dangerous drugs, we believe that the right to sue in state court for the failure to warn must apply equally to generic drugs as it does to their name brand counterparts. Any other conclusion would lead to inconsistent results and unjustly deny recourse to those who suffer dangerous side effects as the result of taking generic drugs.