End result for the market
Mensing's pre-emption conclusion is completely irrelevant to the legal tenability of the innovator liability theory. The fact that
one group of potential defendants is absolved of liability based on pre-emption does not mean that liability necessarily falls
to another group. In fact, as stated above, both the majority and dissenting opinions in Mensing recognized that the net result of the decision on consumers of generic drugs was that they were now without a remedy for
any claim of inadequate warnings, not that the improper defendants had been identified.
While this result may be unsatisfying to some, that is the legally correct byproduct of Mensing. Compared to judicially created innovator liability, the case also makes sound policy. Altering the long-held majority rule
would be a knee-jerk reaction to a perceived unfairness without any basis in the law. As those types of decisions often do,
it would likely result in a variety of unintended and harmful consequences that would throw off the balance created by Hatch–Waxman
and threaten the objectives that underlie it. Branded companies would likely pull their drugs from the market once the patent
had expired to reduce potential liability. This would result in less choice, less competition, and higher prices. Alternatively,
branded companies could keep their products on the market, but at even higher prices for both their patented drugs and their
drugs with generic competitors to compensate for the potential liability.
If Congress decides that Hatch– Waxman's tradeoff of drug access and affordability in exchange for the generic-drug manufacturers'
immunity from state law failure to warn claims is untenable, then Congress can act to redress the situation. "But it is not
Court's task to decide whether the statutory scheme established by Congress is unusual or even bizarre" (14). It is also
not the job of the state or federal courts interpreting state tort law to torture the well-established statutory and common
law schemes to rectify any perceived inequitable result.
References
1. 131 S.Ct. 2567 (2011).
2. 129 S.Ct. 1187 (2009).
3. Statement of Rep. Douglas Walgren, 130 Cong. Rec. H24456 (Sept. 6, 1984).
4. IMS Health, "Generic Medicines Saved US Health Care System $139.6 Billion in 2009; $824 Billion Saved over the Last Decade"
(July 2010).
5. Mensing, 131 S.Ct. at 2581.
6. Id. at 2593. (J. Sotomayor, dissenting).
7. 29 F.3d 165 (4th Cir., 1994)
8. Id.
9. Id. at 171.
10. 168 Cal.App.4th 89 (Cal. Ct. App., 2008).
11. Colacicco v. Apotex, 432 F.Supp.2d. 514, 537–538, 543 (E.D. Pa. 2006).
12. F. 3d, 2011 WL 4389211 (C.A.6 (Ky.), Sept. 22, 2011.
13. Gross v. Pfizer, Civ. A. No. 10-cv-00110-AW, 2011 WL 4005266, *2 (D.Md.), Sept. 7, 2011; see also Morris v. Wyeth, Civ. A. No. 3:09-CV-854,
2011 WL 4975317, *2 (W.D. La.), Oct. 19, 2011.
14. Mensing, 131 S.Ct. at 2582.
Zach Hughes is a partner at Baker Botts, zach.hughes@bakerbotts.com
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