We can’t say much about it because we’re involved in the metoclopramide litigation, but those of you involved in product liability suits involving generic drugs will want to review Fullington v. PLIVA, Inc., 2011 WL 6153608 (E.D. Ark. Dec. 12, 2011), for the following propositions:
(1) Warning-related claims involving generic drugs are preempted under Mensing, no matter what a plaintiff calls them. Fullington, 2011 WL 6153608, at *4-5.
(2) Manufacturing defect claims can’t be pleaded under TwIqbal without pleading either an act of manufacturing or defect. Id. at *5.
(3) Design defect claims can’t be pleaded under TwIqbal without pleading either an act of designing or defect. Id. at *5.
(4) Plaintiffs may not escape preemption by arguing that a generic drug should have been removed from the market altogether. Id. at *6.
(5) Nothing in Mensing did (or could) change state law that product-related claims only lie against the manufacturer of the product that the plaintiff actually used. Id. at *6.