We’ve just learned from our friends at Skadden that the plaintiffs attempt to obtain reconsideration of the Mensing preemption dismissals in the Darvocet MDL have come to naught. See In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, MDL No. 2226, slip op. (E.D. Ky. June 22, 2012). Here’s what the court had to say about Bartlett‘s “just remove it from the market” rationale:
Having reviewed the Bartlett decision, the Court agrees with the Generic Defendants. In Bartlett, the First Circuit adopted the “failure-to-withdraw” argument previously rejected by this Court and others. This argument — which failed to persuade either the Supreme Court or the Eighth Circuit on remand in Mensing, and the Sixth Circuit in Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011) — is no more availing now. Moreover, the First Circuit offered little explanation for accepting it, noting simply that the Mensing opinion had not specifically addressed design-defect claims.
Darvocet, slip op. at 4-5 (other citations omitted).
As we observed before, Bartlett is little more than the First Circuit jabbing a sharp stick in the eye of the Supreme Court because the lower court doesn’t like Mensing. It allowed a theory (take generic drugs off the market altogether) that conflicts even more strongly with Hatch-Waxman than the warning theory preempted in Mensing. We didn’t think that other courts would be taken in, and so far they haven’t.