Innovator Liability Is The Least Scary Thing About Rafferty

Law360 (April 3, 2018, 2:56 PM EDT) -- Legal newsletters, blogs and client alerts have blown up over Rafferty v. Merck, the recent decision from the Supreme Court of Massachusetts that opens the door to innovator liability claims in that state. Plenty has been written about the court’s adoption of innovator liability, but there are other troubling aspects of that opinion; the vagueness of the court’s recklessness standard and the absence of the learned intermediary.

The central holding of Rafferty is that a brand drug manufacturer, the company that receives FDA approval to market a drug with a new drug application (NDA), can be liable for harm caused when...

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