Massachusetts Supreme Judicial Court Recognizes Claim Against Brand-Name Drug Manufacturer By Generic Drug User Where Failure To Warn Is Reckless -

In Rafferty v. Merck & Co., 479 Mass. 141 (2018), plaintiff alleged defendant negligently failed to update the label for its brand-name prescription prostate drug to warn that sexual side effects could persist even after discontinuing. Although plaintiff never used defendant’s drug, but only its generic equivalent, he contended defendant owed a duty to generic users because defendant knew that under the Federal Food, Drug and Cosmetic Act (“FDCA”) generic manufacturers were required to use the same warning label as the brand-name drug. Plaintiff also asserted defendant’s failure to warn violated Mass. Gen. L. ch. 93A, the state unfair and deceptive practices statute.