(This post comes from the non-Dechert side of the blog.)

Like the court, we start at the end, with the knockout blow.  Here’s how the court set it up:

It is not mind-taxing to discern why Eckhardt [the plaintiff] shies from labeling his claims as products liability claims: A products liability claim against the Generic Defendants simply cannot succeed.

Eckhardt v. Qualitest Pharmaceuticals, Inc., No. 13-40151, at 4-5, 5 (5th Cir., May 13, 2004) (Slip Op.).

With its target in its sights, the court delivered the Mensing haymaker to plaintiffs’ failure to warn claim:

Mensing establishes two points relevant to Eckhardt’s claims. First, under federal law, generic manufacturers of a prescription drug are not permitted unilaterally to change the labeling on that drug, even if that change “strengthens” the warnings.  Second, it follows that any state law tort claim that is based on a generic manufacturer’s failure to update the labeling on its drug directly conflicts with this federal law requirement and is therefore preempted. . . .

Eckhardt alleges that Texas state law imposed a duty on the Generic Manufacturers to provide stronger warnings on their product.  But Mensing makes clear the Generic Defendants were estopped from unilaterally doing so under federal law.  The district court’s dismissal of Eckhardt’s products liability claims against the Generic Defendants was therefore proper.

Slip Op. at 5-6, 6 (citations omitted).

This punch also took plaintiffs’ warranty and Texas consumer protection act claims with it.  Id. at 8-9.  That’s some haymaker.

In fact, it included extra thump from the Supreme Court’s Bartlett decision, also taking down plaintiff’s design defect claim. Id. at 6 (“we find that Eckhardt is again on the wrong side of the Supreme Court”).  The court did not waver in delivering this knockout blow despite plaintiffs’ argument that Bartlett did not apply because plaintiffs’ claims were brought under Texas design defect law, which doesn’t require the cost-benefit analysis that helped lead to preemption in Bartlett.  Id. 7.  That is because there’s no avoiding the fundamental concept of a design defect claim – it alleges, well, a defect in the design.  Accordingly, Texas law does require proof that the defendant failed to adopt a safer alternative design. Yet federal law prohibits a generic manufacturer from changing the design of the branded drug, “and, therefore, no alternative design existed.” Id.  Knockout.

It’s a bit surprising that these generic/branded metoclopramide claims are still out there being disputed and reaching the circuit court level.  In any event, they are now quite regularly subjected to what we’ve been calling the new one-two punch: (1) a plaintiff can bring product liability claims only against the maker of the drug that he or she ingested, and (2) claims against generic manufacturers are preempted.

We just witnessed the second blow, the knockout of the claims against the generic manufacturer.  The court also delivered the first blow against the branded manufacturer.  It was a jab, but a powerful one: “To the extent Eckhardt raises products liability claims against the Brand Defendants, those claims may be quickly rejected.”  Id. at 9.  The analysis is equally simple.  Under Texas law, if the plaintiff didn’t take a branded defendant’s product, it can’t be sued, no matter how artfully plaintiffs try to state a claim.  Here, plaintiffs tried to argue that the branded defendants’ control over the drug’s design (1) rendered them liable for failure to warn or (2) created a non-product-liability-related duty of some sort to plaintiffs.  No and no.  Plaintiff did not take the branded defendant’s drug, and that is the end of it Id. at 10-12.

When Bexis returns from vacation, which despite rumors is not a two-week law-library crawl, we can be sure that this decision will be added to our generic preemption and branded/generic scorecards.