[JURIST] The US Supreme Court [official website] heard arguments in Mutual Pharmaceutical Company, Inc. v. Bartlett [transcript, PDF; JURIST report] Tuesday to consider whether design defect claims [Cornell LII backgrounder] can be brought when a generic drug does not present all the warnings the brand-name version of the drug does, and thus causes injury. Attorneys for Mutual Pharmaceutical argued that PLIVA, Inc. v. Mensing [JURIST report] directly controls because the warning was critical to the jury’s finding of a design defect. “We also have a case here that even if it were just purely a design defect case, at least with respect to a generic drug company, the Federal sameness mandate, the same Federal sameness mandate that applied in Mensing to warnings, applies in design defect cases. And therefore it is a classic impossibility case, just as the Court found in Mensing.” The attorney for Karen Bartlett argued that impossibility does not apply, because if a jury found design defect in a generic drug, the manufacturer of that drug has the option to stop selling the drug, which makes the issue distinct for the brand-name’s selling of the drug.

The court also heard arguments in Sebelius v. Cloer [transcript, PDF; JURIST report] concerning whether a claim that was filed against the government untimely but had merit could recover attorney’s fees. In this case, Dr. Melissa Cloer filed an untimely claim to recover from the National Vaccine Injury Compensation Program [official website], which took six years of litigation [SCOTUSblog backgrounder] to deem untimely although otherwise meritorious, and incurred over $100,000 in attorney’s fees. The Solicitor General argued that the clear reading of the act does not provide for attorney’s fees. The attorney for Dr. Cloer argued for the reading of Section 15(e)(1) [text] that states, “Any petition filed under Section 11 is eligible for award of attorneys’ fees, even if it’s denied, provided that two conditions are satisfied. It has to be filed in good faith and with a reasonable basis.”