Product Liability -- 2018

Rafferty v. Merck & Co.   (Massachusetts Supreme Judicial Court)

Innovator liability

The NAM filed an amicus brief urging the Massachusetts Supreme Court to reject a claim by a consumer over injuries sustained from the ingestion of a drug made by another company. The drug is a generic version of one originally made by Merck but now sold by competitors. The overwhelming majority of courts that have addressed this issue have rejected innovator liability, and making innovators liable for injuries alleged to occur from the consumption of generics would expose them to limitless liability. The NAM's amicus brief argued that brand-name manufacturers do not owe a duty to users of generic medicines and that imposing such an obligation is bad social policy and fundamentally unfair. The Massachusetts Supreme Court upheld the trial court, holding that “where the failure to warn is with respect to a drug that Merck has never advertised, offered to sell, or sold,” it would unreasonably expand the limits of products liability.

Related Documents:
NAM amicus brief  (August 25, 2017)


© 2019 National Association of Manufacturers