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The United States Supreme Court has agreed to hear a pharmaceutical company’s appeal regarding its liability to those alleging they were harmed by generic drugs. The Supreme Court will be examining a $21 million judgment won by a New Hampshire woman in a civil suit who alleged that she sustained severe and permanent injuries after taking a generic anti-inflammatory manufactured by Takeda Pharmaceutical Company’s Mutual Pharmaceutical Company unit.

The plaintiff alleges that the generic drug sulindac was unreasonably dangerous and designed defectively. She alleges that the drug required her to spend a year being fed from a tube, spend months in a coma, and undergo twelve eye surgeries with more to come. The defendant did not deny that sulindac caused the plaintiff’s reaction. Instead, it argued that the drug performed a needed function and that unfortunate reactions like the plaintiff’s happen occasionally.

The defendant also argued that, because it is a generic drug manufacturer and did not design the drug, it could not be liable for the side- effects. A jury found the defendant liable and awarded the plaintiff more than $21 million in damages. The United States Court of Appeals in Boston rejected the defendant’s arguments and upheld the large verdict in favor the of the plaintiff.

Bad Precedent?

Previously in 2011, the Supreme Court ruled that consumers harmed by the side effects of generic drugs could not bring a lawsuit alleging that they were not properly warned. In that case, the generic drug manufacturer was sued under state drug labeling law.

The Supreme Court reached its decision, in large part, because the Food and Drug Administration forbids generic drug manufacturers from changing a drug’s label unless the name-brand label is changed as well. In the end, it held that the Food and Drug Administration’s rules regarding labeling trumped those of states.

While the previous case is similar, it does not necessarily preclude a decision in favor the plaintiff in this case. The New Hampshire law in question provides that a drug has a design defect if the danger outweighs the utility of the product. Unlike the previous Supreme Court case, here the state law does not conflict with federal law.

Also, in this case, the plaintiff’s lawyers have argued that generic drug manufacturers still owe some duty to the ultimate consumers. Generic drug manufacturers still have a choice about selling dangerous drugs if they want to comply with the Food and Drug Administration’s rules, if the drug is dangerous or defective, they do not have to sell it.

The repercussions of the Supreme Court’s decision could be far-reaching. Some experts believe that a decision in favor of the pharmaceutical company would prevent any state law claims for products that are also regulated by the federal government. In addition, it could significantly reduce a consumer’s ability to bring a lawsuit against generic drug manufacturers.

Conversely, a decision in favor of the plaintiff could provide those injured by generic drugs some hope that they will have their day in court and an opportunity to seek justice. As always, if you have questions about these matters in our area, be sure to get in touch with a NH attorney and share your story.

New Hampshire saw only seven workplace deaths in 2008 — half as many as in 2007, according to the Bureau of Labor Statistics.

Although this is statistically fortunate for most employees, the Bureau cites the slowing economy as the main reason for lower death rates.  This, of course, is not necessarily a good sign for New Hampshire.  A down economy results in fewer employees in the workplace and fewer hours for those who have work.

[According to the Bureau of Labor Statistics, a fatality is a “workplace death,” if the employee was engaged in legal work activity or in an area as a part of his or her work requirements.  Deaths while commuting to or from work do not count in these statistics.  Neither do deaths from illness during employment (unless, of course, the employee's illness could be traced back to the work environment).]

The Bureau’s statistics on Occupational Injuries and Illness showed that rates of work-related personal injuries and illness also fell.  The time required to recover from these injuries, however, increased.

This brings up two issues: (1) deaths and injuries attributed to workplaces must have sufficient documentation in order to blame employers; and (2) there may be reasons why some employees fail to report accidents.

Furthermore, fewer workers and work hours result in fewer overall injuries and deaths, but perhaps even greater stress for those still on the job.

Again, these statistics cover only what was recorded and do not take into consideration injuries and illness unreported by either the employee or the employer.

While the economy may have impacted the number of employees and, therefore, the incidents of death and injury, it may also have affected the likelihood that either a worker or a business would report minor injuries or illnesses.

In fact, with a slowing economy it’s likely that some workers may choose not to report personal injuries for fear of losing a job.  This would support the idea that only the most severe personal injuries are being reported to employers, therefore decreasing the number of reports but increasing recovery time.

Conclusion: Workers need to remember that personal injuries should be taken seriously, especially if they are job-related, and should report them accordingly.  Laws and regulations are set up to support and compensate injured employees, even if the injury is minor.  A slow economy may influence statistics, but that same economy can affect individual workers who may put themselves at risk with higher stress.

Keep this in mind if you or a loved one is injured on the job. Regardless of fault, injuries and deaths at work need to be reported to help prevent future injuries on the job.

Statistics only tell part of the story. Injury prevention is really up to the employees who must report problems to maintain a safe and healthy work environment.

Six years ago 18 year-old Brandon Patch died when he was hit by a baseball while playing in an American League baseball game in Montana. After years of legal battles, the jury finally awarded the family $850,000 in damages. The defendant: Hillerich & Bradsby, the makers of the the Louisville Slugger baseball bat.

According to the courts, the bat company failed to adequately warn users of the dangers of aluminum bats which, according to the company, supply more power in the game when compared to the wooden alternatives. According to the courts, these aluminum bats can cause a ball to travel faster and can apparently cause a baseball to become a deadly projectile.

The family claimed that the faster speed did not give their son enough time to react in order to avoid the ball. As a result, Brandon was hit in the head, ultimately causing his death. At the time of the incident, Brandon was playing as pitcher in the game.

Interestingly enough, the jury didn’t find that the Louisville Slugger was misused in anyway nor did they find it to be defective.

In the past it was assumed that players understood the risks associated with the sport of baseball and the potential dangers of bats and balls. The Montana case, however, brings about the discussion of placing warning labels on bats to give players a greater understanding of the dangers of baseball.

Debbie Patch, Brandon’s mother, had not expected a Plaintiff’s verdict, but instead hoped that other parents and players would become more aware of the dangers involved with aluminum bats. As a result of the court decisions, however, Patch hopes that more youth leagues would switch to using wooden bats instead of the aluminum ones that played a part in her son’s death.

This is not the only personal injury case against Hillerich & Bradsby, the makers of the Louisville Slugger. Last year a New Jersey family pressed charges against the bat maker after their son suffered brain damage after an injury during a baseball game.  He was struck by a line drive off of an aluminum Slugger bat similar to the one used in Montana. The New Jersey case is still pending in the State’s Supreme Court.

As personal injury cases become more and more complex, they begin to affect different areas of society. This one, for example, can potentially impact the entire sport of baseball all over the country. As a result of both the Montana and New Jersey cases, parents and students in New Hampshire might begin to see new labels on all kinds of sporting equipment. Louisville Slugger might be the defendant in this case, but it’s possible that cases for other sports might surface in the coming years.

In order to prepare for the changes in the industry, sporting equipment companies may begin to preemptively warn individuals of the dangers of using their goods. Although this will help protect the companies against personal injury suits, it may also change the nature of sports. With the Louisville Slugger cases, for example, parents in Montana, New Jersey, and even New England may begin adopting the practices of the professional leagues by using wooden bats instead of aluminum.

We’ll have to keep an eye on this to see how far and how fast this trend might go.