Brooklyn Journal of Corporate, Financial & Commercial Law

First Page



"Since two important federal preemption decisions by the United States Supreme Court, those injured by warnings defects in the drugs they take may sue the manufacturer only if the patient took a brand-name drug. Those who took the generic version of the drug, which comprise approximately 90 percent of all prescriptions, cannot sue the drug manufacturer regardless of how inadequate its labeling is in explaining the risks of consuming the drug. Clever plaintiffs’ lawyers began bringing suits on behalf of their generic-drug-consuming clients against brand-name manufacturers that, under the Food, Drug, and Cosmetic Act, control the labeling both on their drugs and on generic versions of their drugs. Instead of (or in addition to) asserting products liability claims, they assert negligent misrepresentation claims against the brand-name manufacturer. In well over 100 court opinions in the last three decades, the overwhelming response has been to deny these claims for a variety of reasons. Arguably, the most prominent ground is that products liability claims must be made against the manufacturer of the product that injured the plaintiff. Such reasoning is specious because the plaintiff’s claim is not a products liability claim—it is a negligent misrepresentation claim. Courts have adopted other, equally unpersuasive reasons for denying these claims. This Article catalogs and assesses the grounds that courts provide in denying these claims, concluding that they hold virtually no water. That courts continue down this path despite the illumination of at least one contrary decision and an excellent law review article explains the epigraph to this Article: How can this be? "

Included in

Torts Commons