Driving on Both Sides of the Road: Supreme Court Hears Bartlett Oral Argument

The Supreme Court heard oral argument yesterday in the much-anticipated Mutual Pharmaceuticals v. Bartlett case, No. 12-142 (on appeal from the First Circuit Bartlett v. Mutual Pharms. Co., 678 F.3d 30 (1st Cir. 2012)). The Supreme Court will determine what most thought seemed already decided by PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011): whether design defect claims against generic drug manufacturers are preempted by federal law, and whether manufacturers can be held liable when their only other option is to withdraw from the market.

BARTLETT’S HISTORY -

The plaintiff, Karen Bartlett, was prescribed generic sulindac for shoulder pain and developed Stevens-Johnson syndrome/toxic epidermal necrolysis (SJS/TEN), which left her permanently injured and disfigured. Bartlett, 678 F.3d at 34. By the time of trial, the only remaining claim for the jury to decide was whether sulindac was defectively designed. Id. The jury found in Bartlett’s favor and awarded her $21.06 million in compensatory damages. Id.

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