On the Road to Recovery: Providing Generic Drug Consumers with a Remedy in Failure-to-Warn Cases

On March 16, 2018, in Rafferty v. Merck & Co., the Supreme Judicial Court of Massachusetts held that brand-name drug manufacturers owe generic drug users a duty to not act recklessly in creating and updating warning labels. Courts deciding this issue have disagreed about whether and to what extent a duty should be imposed on brand-name manufacturers concerning injuries caused by generic products they do not produce. The Supreme Judicial Court is among the minority of courts that has correctly imposed a duty on brand-name manufacturers in this context. Its imposition of a recklessness standard, however, is incorrect because it inappropriately weighs public policy concerns.