Court Sees Possible FDA Liability in Drug Compounding Case

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A Massachusetts federal judge has allowed an argument that FDA acted recklessly in its oversight of the New England Compounding Center (NECC) and thus bears some liability for damages incurred by two medical practices that used contaminated sterile drugs from NECC to go forward. The judge ruled on a motion from the Plaintiffs’ Steering Committee on an affirmative defense offered by the Specialty Surgery Center and Calisher and Associates arguing that several non-party governmental entities including FDA were liable by not properly acting against NECC. The steering committee sought judgment on the pleadings.

The medical practices alleged that FDA acted recklessly because it was aware that NECC had sterility and potency issues as early as 2002 but “failed to take any meaningful and substantive action,” the ruling says. The practices cited a 2006 Warning Letter from FDA to NECC and said that the agency “failed to take any action against NECC after issuing this letter and, thus, proximately caused the alleged injuries.”

The judge ruled that the practices had stated sufficient assertions to create an affirmative defense of comparative fault against FDA under the Tennessee public duty doctrine.

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