Photo of Michelle Yeary

We all know that absent extraordinary circumstances, failure to warn claims against generic drug manufacturers are preempted under PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).  But as far as we are aware, no other court has been asked to decide whether that same preemption applies to cross-claims for contribution or indemnity.  Until now.

In Haney-Williams v. GlaxoSmithKline LLC, 2019 WL 7284737 (D. Nev. Dec. 27, 2019), plaintiff filed a failure to warn claim against the manufacturer of a generic drug prescribed to treat her epilepsy.  She also brought claims against the pharmacy that filled the prescription alleging they gave her the wrong strength of the medication.  Plaintiff originally also sued the manufacturer of the brand name product, but dropped those allegations early on.  Id. at *1.

The pharmacy filed a cross-claim against the generic manufacturer for comparative negligence, equitable indemnity, and declaratory relief, along with some contract-based claims. Id.  The contract-based claims were dismissed because the contract had expired prior to plaintiff’s injury.  Id. at *5.  The generic manufacturer moved to dismiss both the direct action by the plaintiff and the contribution claims by the pharmacy as preempted.

The failure to warn claim was easily dismissed under Mensing after the court took judicial notice of the ANDA which identified the drug as a generic product, a fact that was omitted from the complaint.  Id. at *3.  The court then turned to the pharmacy’s cross-claims.  Under Nevada law, a comparative negligence claim provides that “each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to that defendant.”  Id. at *4.  Similarly, equitable indemnity “allows a defendant to seek recovery from other potential tortfeasors whose negligence primarily caused the injured party’s harm.”  Id.  Under both scenarios, recovery is only permitted from another tortfeasor.  Therefore, for the pharmacy to recover under either theory, there would have to be some way the generic manufacturer could be find liable.  Id.  But, because plaintiff’s sole cause of action against the generic manufacturer is preempted, the generic manufacturer cannot be found a tortfeasor and there can be no derivative claim.  As the pharmacy’s request for declaratory relief was derivative to its other claims, it too was dismissed.

The rationale is simple, straightforward and should apply in all preemption cases resulting in a complete dismissal of plaintiff’s claims, not just generic preemption.  A little surprising that it has taken this long to get this one in the books.  Granted it’s a twist we don’t see that often.  But if you do find yourself in this vexing situation, it’s good to know the law is on our side.