Court Allows Amended Proscar Complaint

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The Massachusetts Supreme Judicial Court says a man who alleged he was injured after taking a generic form of Merck’s Proscar (finasteride) for benign prostatic hyperplasia may amend one portion of his complaint, while the other two elements were dismissed. The court’s opinion says a plaintiff may not bring a negligence claim against the brand name manufacturer for a failure to warn. It also says that a plaintiff who is injured by a generic drug due to a failure to warn cannot bring a state law claim against a manufacturer that did not advertise, offer to sell, or sell that drug because such failure did not occur in the conduct of trade or commerce.

However, the court found that if the plaintiff were to amend his complaint, and if the amended allegations would so warrant, he could bring a common law recklessness claim against the brand name manufacturer if it intentionally failed to update the label on its drug, knowing or having reason to know of an unreasonable risk of death or grave bodily injury associated with its use.

 

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