$21 Million Verdict Affirmed: Preemption Defense Fails

Plaintiffs have taken a lot of hits on preemption lately, particularly with generic drugs. But we got a win this week when the First Circuit U.S. Court of Appeals affirmed a $ 21 million generic drug injury verdict.

The plaintiff in this case developed Stevens-Johnson Syndrome (SJS) and toxic epidermal necrolysis (TEN) from the use of generic Clinoril, a prescription drug that treats shoulder pain. Awful case, the woman spent seventy days in a hospital and suffered a ton of life long injuries.

The drug company – Mutual Pharmaceutical – argued that plaintiff’s design defect claim is preempted by federal law. Defendants have had a lot of success with preemption claims of late. But the court found that Congress has not sought to preempt design defect claims against generic drug manufacturers.


The court also found that this $21 million verdict – the largest award in New Hampshire history–and more than twice the award against a car manufacturer, following a crash in which a young child died and another was left permanently disabled – was not excessive as a matter of law because this woman’s injuries are that awful, and a jury should have wide discretion to give the amount they deem appropriate (I’m paraphrasing a little here). I can tell you this: the Plaintiff is not made whole with $21 million here, either. She cannot eat normally due to esophageal burns, cannot have sexual relations due to vaginal injuries, and cannot engage in aerobic activities due to lung injuries. She is almost blind. Her face is disfigured.

Who on earth would take that for $21 million?

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