Photo of John Sullivan
We always try to keep things lively around here.  Law can sometimes be drudgery.  But we don’t ever want that type of atmosphere to seep into this blog.  That’s one of the reasons the blog is here: to discuss what we do without the boredoms and formalities that sometimes saturate our every-day practices.  So, here, if we’re ever being stared down by work that threatens to be laborious and soul-sucking – we just change it.  Sometimes it only needs a small change, something that makes it silly or at least fun. 
We did that two weeks ago, you may recall, when we updated our Mensing preemption scorecard.  Scorecards, lists and categories, Oh my!  You can see why we’d want to change that.  So it became a question-and-answer format that allowed us to play-act as if we were important interviewees (and ignoring on some level that we were just interviewing ourselves).  The format change was enough to make it interesting, at least for us.
Now, if at the time we had seen the decision in Phelps v. Wyeth, 2012 U.S. Dist. LEXIS 45865, (D. Or. Feb. 24, 2012), the substance of the post would have gotten a little more interesting too.  We could have added this unexpected question: Have plaintiffs had success reversing Mensing using discovery sanctions?  There’s no way you could anticipate that one.  But it’s a legitimate question now, and one that we like for a couple of reasons: (1) it’s unexpected and therefore interesting; and (2) the answer is “No.” 
In Phelps, the plaintiffs brought failure-to-warn (and other) claims against a generic manufacturer of metoclopramide.  Id. at *2.  While the action was stayed pending release of the Supreme Court’s decision in Mensing, plaintiffs’ counsel discovered certain defendant product labels that had not been produced and that didn’t match, as required, the brand-name label.  After being informed of this, the defense counsel realized its mistake and immediately produced them to a broad group that included the plaintiffs and others, and even the Supreme Court.  Id. at *3-4.
Thereafter, the Mensing decision was issued, and a host of motion practice followed in Phelps.  The upshot was that the court granted summary judgment to the defense based on the Mensing decision (that’s another one for the list) but allowed the plaintiffs to amend their complaint to proceed on a claim that the defendant failed to properly update its label for a certain period of time.  Id. at *4-6.  That’s not surprising.  But the Plaintiffs wanted more than just their new claim.  They wanted to somehow revive their old, preempted claim.  How?  Through sanctions.  They asked the magistrate to strike the defense’s preemption defense because of its failure to produce the labels.  In other words, plaintiffs asked the court to use discovery sanctions to reverse its Mensing preemption order.  Id. at *6-7.
Well, the court didn’t do it.  It didn’t believe that the conduct was sanctionable.  The court stressed that the plaintiffs hadn’t been prejudiced in any meaningful way by the delay in production of the labels and that the initial failure to produce the labels was nothing more than an oversight.  Id. at *8-11.  In other words, despite the importance of the labels, it was just a mistake and one that did little to no harm. 
Denying the motion in its entirety, however, sidestepped the question of whether a proper sanction actually could involve reversal of the Mensing preemption.  We have serious doubts that it ever could.  Under Mensing, the state law failure-to-warn claims are preempted.  They’re gone.  It’s hard to see how a party’s failure to meet a discovery obligation could somehow re-animate them.  Mensing preemption is based on more than just the fact that state claims place additional and conflicting requirements on defendants.  It’s based on the reality that the state law claims improperly invade an area explicitly covered by a federal regulatory scheme, one that is guarded from such invasion by nothing less than the United States Constitution and its Supremacy Clause.  That protection isn’t something that could or should be wiped away by any particular litigant’s discovery failures.

Maybe that will be a discussion for another day (or, better yet, a question and answer session). But for now the answer is “No,” plaintiffs have had no success trying to sanction away Mensing preemption.