So Close, Yet So Far Apart

Some of you may know about the case heard by the U.S. Supreme Court, Wyeth v. Levine.  It was a case involving the drug Phenergan, where it was injected into a woman's artery, instead of a vein, as it should have been.  As a result, the woman suffered a serious vascular injury and her right arm had to be amputated.  The case was brought to the Supreme Court by the manufacturer of the drug who said the woman could not bring state law claims against them for her injuries because the drug's warning label had been approved by the FDA.  The Supreme Court rejected this argument, and said the state law claims could be brought for the failure to provide an adequate warning.  It was a good case for plaintiffs in drug litigation all across the United States.  Well, I recently ran across a similar case with a drastically different outcome.  In Schork v Baxter Healthcare Corporation, 2011 U.S. Dist. LEXIS 107687 (S.D. Ind. Sept. 22, 2011), the facts were virtually identical.  Same drug, injected in an artery instead of a vein, resulting in amputation.  The big difference?  The court threw the case out (in essence).  Why?  Because Schork involved a generic drug.  The Supreme Court recently ruled in the Mensing case that if a drug is generic, the manufacturer doesn't have the duty to update the warning label, even when the facts show that they should.  So the takeaway here is if you are taking generic drugs it is definitely "buyer beware".  You will have nowhere to go and no one to sue if the generic warning label doesn't adequately warn you and your doctor about the risks of taking the drug.  Even if it causes you to have your arm amputated.  Amazing.