Indiana Attorney General Curtis Hill this month joined a bipartisan group of 23 state attorneys general in urging the U.S. Supreme Court to uphold states’ ability to sue pharmaceutical manufacturers when they mislead consumers about the potential side effects of their products.
In an amicus brief filed Nov. 21 in the U.S. Supreme Court, Attorney General Hill and his counterparts argue that Merck, a pharmaceutical company, can be held liable under state law for misleading and misrepresenting the side effects of their drug Fosamax.
“Protecting Hoosier consumers is a major focal point of our office,” General Hill said. “We trust and expect that the highest court in the land will uphold the constitutional authority of Indiana and other states in this regard.”
The 14-state coalition filed an amicus brief in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, arguing that if the Supreme Court sides with Merck, it will hinder states’ ability to take legal action against a pharmaceutical manufacturer for misleading and misrepresenting its products. Additionally, the attorneys general argue that Merck may be held liable under state law even if it is not liable under federal law.
After suffering from a specific type of fracture, hundreds of Fosamax users filed personal injury lawsuits against Merck, alleging that it did not warn consumers about the risk of these specific fractures. Merck claims that, because the FDA did not approve a warning label for a different type of fracture, it is not liable under state law.
The brief argues the following points:
- The Constitution gives the states or the people all powers that are not specifically delegated to the federal government.
- States have long regulated drug labeling and the duty to warn both physicians and patients about emerging safety risks. This authority, which predates the beginning of federal drug regulations, must be upheld by the Court.
- Merck’s argument would break precedent in the balance between state and federal regulations, especially with regard to consumer protection.
