By Bill Cash

December 7th, 2012  8:00am

The Supreme Court has agreed to hear the case of a woman injured by a generic painkiller that caused an intensely painful skin reaction that blinded her and burned off sixty percent of her skin.  The case, Bartlett v. Mutual Pharmaceuticals, was tried in New Hampshire in 2009.  Mrs. Bartlett described how her doctor prescribed the drug sulindac, a rarely-used anti-inflammatory drug, for her shoulder pain.  Sulindac was originally sold under the brand name Clinoril, but dispensed to Mrs. Bartlett in generic form.  After the reaction began, Mrs. Bartlett’s life turned to “hell on earth,” in the words of her doctor.  She spent a year being fed from a tube, spent months in a coma, had had twelve eye surgeries, and had many more to go.  Ultimately a jury found liability and awarded Mrs. Bartlett more than $21 million in damages.

Experts for Mrs. Bartlett also showed that the drug’s risk outweighed its benefits.  They showed that there were multiple drugs in this class, and that sulindac far and away had the most reports of adverse events of any drug in the class. Sulindac was as dangerous as Bextra (valdecoxib), another drug in the same class which has already been taken off the market.

The company that made the sulindac, Mutual Pharmaceuticals, did not deny that its drug caused the devastating reaction.  Instead, it argued that the drug performed a needed function and that unfortunate reactions like this are occasionally an outcome.

Mutual also argued that, as a generic drug company, it cannot be held responsible for its products.  Generic drug companies have been arguing for years that because they did not design their drugs and did not secure the original license to market the drug, they should not be legally liable for the results — even if a doctor prescribed the name-brand version of the drug, even if a generic is the only version still on the market, and even if no one else can be held legally responsible either.  The U.S. Court of Appeals in Boston rejected Mutual’s arguments and upheld the substantial verdict in favor of Mrs. Bartlett.

Now her case proceeds to the Supreme Court for argument in March.  If the Supreme Court affirms the decision, it will be a victory for people injured by generic drugs.  If the lower courts are reversed, generic drug companies will enjoy a license to print money without liability.

Bill Cash is an associate at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.  Mr. Cash represents people wrongfully injured across the United States.  He concentrates his practice mainly in the area of products liability, including pharmaceuticals and other consumer products, but occasionally also handles other personal injury claims and contract cases.

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