|June 15, 2008|
Previously published on May 27, 2008
Actor and plaintiff Dennis Quaid, testified before US Congress on Wednesday, May 14, 2008, regarding a medication mix-up that he says was caused by a pharmaceutical company using labels that were too similar. This follows from a products liability action brought by the actor and his wife against Baxter Healthcare, the pharmaceutical manufacturer of the drug product involved. The legal action claims that Baxter used similar labeling for two different dosage forms and that this caused the error that nearly killed his newborn twin children.
Attorneys James Thomas and Sheldon Pontaoe of Troutman Sanders LLP have spoken extensively about the issues that can arise with the selection of trade dress and trademarks by pharmaceutical companies, and Mr. Thomas’s written article on the subject appeared previously in the Food and Drug Law Journal (59 Food and Drug L.J. 325-37, 2004). The question arises whether a pharmaceutical company can be held liable for damages in a case of a product mix-up due to the similarity of labeling or trademarks.
In Quaid’s case, the medication mix-up occurred at the hospital where the Quaids’ newborn twins had just been born. The twins received 1,000 times the intended dose of heparin, according to Quaid. Mr. Quaid testified before Congress, “Although mistakes did occur at [the hospital], the overdosing of our twins was a chain of events of human error - and the first link in that chain was Baxter."
US courts and lawmakers are currently debating whether federal food and drug law should pre-empt state tort law. If found to apply, federal preemption would effectively insulate pharmaceutical companies from state lawsuits such as the one filed by the Quaids. Indeed, Baxter has filed to have the Quaid action dismissed on precisely such grounds. For pharmaceutical companies, and in particular the trademarks and marketing functions within these companies, this will be a debate to monitor closely.