We take a lot of ribbing for our television-watching. We get criticized for watching it too passionately, too much, or for watching it at all. Maybe the first two criticisms are valid. Sometimes we talk about Don Draper (Mad Men) or Larry David (Curb Your Enthusiasm) as if they were real.
There has been a lot of good news coming out of the Darvocet MDL recently (see here, here and here). In particular, the use of the one-two punch of product identification (can’t sue non-manufacturers (i.e. brand manufacturers)) and generic preemption (can’t sue generic manufacturers) to dispose of meritless generic pharmaceutical litigation. But what if the brand name manufacturer also manufactured the generic drug? In that case, the one-two becomes a two-fisted hammer punch like that so often used by Captain James T. Kirk.
The latest decision picks up where the court left off on February 5, 2012, see 2012 WL 767595, considering the liability of a brand name manufacturer who manufactures generic drugs for sale by a generic manufacturer. In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 U.S. Dist. LEXIS 107388 (E.D. Ken. Jul. 31, 2012) (addressing complaints filed by two plaintiffs Chavez v. Eli Lilly and Company, et al., Civil Action No. 2:12-62 and Marston v. Eli Lilly and Company, et al., Civil Action No. 2:12-66). With respect to Darvocet, the original NDA Holder (brand manufacturer) entered into an agreement in 1994 to also manufacturer generic product and supply it to one of the generic manufacturers for sale. After the original NDA Holder sold off the NDA in 2002, it continued to manufacture and supply generic product to the generic manufacturer. 2012 U.S. Dist. LEXIS 107388, at *47. When the court examined this issue back in February, based on the alleged dates of usage, the court held “it is not reasonable to infer that a product ingested in 2010 was manufactured by [the original brand name manufacturer],” id. at *48, and therefore dismissed the claims.
In the current cases, plaintiffs Marston and Chavez alleged they used generic propoxyphene no later than 2004, removing the “attenuated time line” problem of the early case and allowing the court to find that these complaints “create more than a sheer possibility that at least some of the [generic] products ingested were manufactured by [the original brand name manufacturer].” Id. at *49. So this time, the court had to go beyond the temporal allegations and look at the substance of the claims. The result was the same – claims dismissed.
Starting with plaintiff Marston – she alleged she ingested the drug between 2003 and 2004 – after the defendant had sold the NDA. Id. at * 47. The court found that by that time, the original NDA Holder was in no different position than a generic manufacturer and therefore applied its prior decisions dismissing all claims as preempted under Mensing. Id. at *48-50 (plaintiff’s “claims against [the original brand manufacturer] are preempted under Mensing, because [it] had no more power to change the label than did [a generic manufacturer]”).Continue Reading Darvocet MDL Lands Two-Fisted Blow to Plaintiffs
Thanks to Susan Sharko of Drinker for forwarding today’s win in Hayes-Jones v. Ortho-McNeil Pharmaceutical, No. MID-L-3416-10, slip op. (N.J. Super. L.D. Aug. 3, 2012). It’s late on a Friday afternoon, and we’re trying to get out for vacation, but we liked it, so we think you will too.
Hayes-Jones is a failure to
There’s a lot going on in Wendell v. Johnson & Johnson, 2012 WL 3042302 (C.D. Cal. July 25, 2012), but much of it depends on very case-specific facts about a particular prescriber’s knowledge, and some of the rest was put off essentially as premature. There is one aspect of the Wendell decision that merits
Thanks and congratulations to Christy Jones and Anita Modak-Truran of Butler Snow for letting us know about – and more importantly winning – today’s decision in Smith v. Johnson & Johnson, No. 11-60624, slip op. (5th Cir. Aug. 2, 2012), affirming summary judgment in a vaginal mesh case.
Smith has two aspects, procedural and
It’s Friday, so it’s time to say goodbye to the work week. And since we’re expecting a sunny summer weekend here, it’s an emphatic goodbye — kind of like the buh-bye that David Spade used to give on SNL (if you don’t remember, we’ll remind you).
That’s the kind of goodbye that the court gave
Earlier this month, Paul Clement, a really smart guy who used to be Solicitor General of the United States, came to Philadelphia to present an overview of the Supreme Court’s last term. According to the Legal Intelligencer’s (that’s our local Philly legal newspaper) article about the event, he suggested that the Supreme Court’s
In our two prior posts concerning Bartlett v. Mutual Pharmaceutical Co., 678 F.3d 30 (1st Cir. 2012), we first hoped that the defendant would “take it up” to the Supreme Court, and ended our second with our belief that Bartlett was worthy of summary reversal. Well, that happened earlier this week, and in the
Summer vacation calls for light reading. Believe it or not, that usually does not include the greatest hits of Scalia, Posner, or any of the Judges of Madison County. Nor does it include plaintiff briefing on bogus parallel claims or the virtues of Conte. Nope, in the Summer we stick to nonfiction. We have been