Case Detail

McNair v. Johnson & Johnson
On December 14, 2017, WLF filed a brief with the West Virginia Supreme Court of Appeals urging it to reject the novel theory of “innovator liability,” which would hold branded pharmaceutical manufacturers liable for injuries allegedly caused by generic drugs they neither manufactured nor sold. As WLF’s brief demonstrates, that approach to liability, if adopted, would mark a sharp and unwarranted break from longstanding principles of tort law by conflating the “foreseeability” of an injury with the existence of a legal duty in the first place. WLF also rebuts the plaintiffs’ suggestion that federal preemption of certain state-law tort claims against generic drug manufacturers somehow justifies shifting the liability burden to the innovator manufacturer. Instead, WLF contends that state courts are in no position to second guess Congress’s carefully calibrated regulatory regime for generic and branded drugs. If any “fix” is necessary, it must ultimately come from Congress or the FDA.
Case Status:
Awaiting oral argument.
More Information and Downloads:
12/14/2017: Download the Brief

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