I’ve written a lot here lately, as a pharmaceutical liability attorney, about fights over whether all Reglan injury claims are preempted under Supreme Court cases. The U.S. Supreme Court rocked the dangerous drug litigation world with 2011’s PLIVA v. Mensing, and added to that precedent with this year’s Bartlett v. Mutual Pharmaceutical. In both cases, the high court ruled that claims for failure to warn against generic drug makers are preempted because it is impossible for generic manufacturers to comply with federal requirements that their labels conform with the name-brand equivalent drug’s, while also conforming to “state law” created by court decisions on failure to warn. This has resulted in many, many lower-court rulings sorting out which claims exactly are preempted. One such battle is being fought in Pennsylvania, with a group of cases including In re Reglan Metoclopramide.
The case comes from the Pennsylvania Superior Court, an intermediate appeals court that took up an appeal from Reglan injury claims pending in Philadelphia. Plaintiffs in the case are individuals who developed tardive dyskinesia, an incurable neurological condition causing uncontrolled movements, after taking Reglan for more than 12 weeks. They sued both the name-brand maker of Reglan and makers of generic equivalents, and the generic defendants moved to dismiss after Mensing, arguing that all of the plaintiffs’ claims are preempted failure to warn claims. Generic defendant Hospira also argued that pre-2009 claims based on failure to update its label are preempted because the name-brand drug didn’t update its warning until 2009. The trial court denied these motions and related motions, but allowed an interlocutory appeal.
The Pennsylvania Superior Court first ruled that it had jurisdiction to hear the appeal, then made rulings that mostly favored the plaintiffs. The generic defendants argued that all of the plaintiffs’ claims were in essence failure to warn claims that are preempted. The Superior Court noted that the avalanche of Mensing-related cases includes cases that don’t analyze how state law conflicts with federal law, as impossibility preemption requires. Analyzing the issue properly requires that courts consider the specifics of each state’s law, the court said, and also the distinctions between the different state-law torts being alleged: strict liability or negligence, breach of warranty, fraud, etc. In this case, the plaintiffs allege strict liability for defective design, which the court noted does not necessarily implicate the label. Thus, it agreed with the lower court that Mensing does not per se preempt the plaintiffs’ claims; scrutiny of each is required. And most pass scrutiny, the court said, except negligent failure to warn claims that predate the 2007 amendments to FDA law. However, the Hospira claims are preempted, the court added.
This ruling came as one of four related rulings from the Pennsylvania Superior Court, all addressing the Philadelphia Reglan mass action. As a dangerous drug lawyer, I’m pleased to report that the decisions are largely plaintiff-friendly (on the merits), like this one. These decisions mean that Pennsylvania courts will look at each claim being made by the plaintiffs to see whether it is subject to impossibility preemption, rather than simply assuming that anything related to drug liability must fall under Mensing. This conforms with recent federal appellate decisions in Reglan cases, including two from here in the Eighth Circuit that resurrected breach of warranty and design defect claims. As a defective drug attorney, I think this is good news for people injured by a dangerous drug like Reglan, because it gives them a fair chance to make their cases.
Based in St. Louis and southern Illinois, Carey, Danis & Lowe represents clients across the United States who have been hurt by taking a prescription or over-the-counter drug they trusted. If this has happened to you and you’d like to talk to us about your rights and your legal options, call us today at 1-877-678-3400 or send us a message through our website.
Similar blog posts:
Eighth Circuit Resurrects Tort Claims Against Generic Reglan Makers – Fullington v. Pfizer et al.
Alabama Supreme Court May Allow Generic Reglan Lawsuits
Appeals Court Permits Breach of Warranty and Defect Claims Against Drug Manufacturer – Bell v. Pfizer
