Late last night we received this message from a correspondent (who will remain anonymous since we lack permission):
Hopefully the groundwork for getting Conte thrown-out has been laid. Only a matter of time. And with any luck we’ll have an opportunity some day soon.
Getting a message like that makes us sit up a little
We just received from defense counsel Matt Wender at Pietragallo Gordon a copy of Moore v. Mylan, Inc., No. 11:1-CV-03037-MHS, slip op. (N.D. Ga. Jan. 5, 2012). It’s another post-Mensing case holding: (1) that the plaintiff can only sue a maker of the drug s/he took (whatever that might turn out to be
We can’t say much about it because we’re involved in the metoclopramide litigation, but those of you involved in product liability suits involving generic drugs will want to review Fullington v. PLIVA, Inc., 2011 WL 6153608 (E.D. Ark. Dec. 12, 2011), for the following propositions:
(1) Warning-related claims involving generic drugs are preempted under
Back in April, we put up a post complaining about Weeks v. Wyeth, 2011 WL 1216501 (M.D. Ala. March 31, 2011), one of the few courts anywhere not to dismiss a Conte-type non-manufacturer liability claim for failure to state a claim. Instead, contrary to five prior Alabama decisions (and literally scores of cases
As you can tell from our old drug preemption cheat sheet (before we split off generic preemption after Mensing), the Smith/Morris/Wilson trilogy out of Kentucky has been hanging fire for quite awhile, since before Levine, actually. No longer. Today the Sixth Circuit ruled and delivered a one-two punch that’s
We have to admit that we’re scratching out heads about a recent decision out of Alabama that – contrary to everything else we’ve seen – concluded that the manufacturer of a branded drug could be liable in a case where it never sold the generic product that was all the plaintiff every took and thereby
Last Friday we had a brief post about the new decision in Bartlett v. Mutual Pharmaceutical Co., 2010 WL 2765358 (D.N.H. July 12, 2010). That was a tickler; we promised you a more fulsome discussion of the opinion later.
Well, later is now, so here goes.
Briefly, the product involved in Bartlett is generic Sulindac, an anti-inflammatory NSAID. The plaintiff was prescribed Clinoral – the branded version of the drug – but in an increasingly common scenario, plaintiff’s pharmacist substituted generic Sulindac. 2010 WL 2765358, at *1. Plaintiff came down with Stevens-Johnson Syndrome (“SJS”), a nasty condition that among other things left her permanently blind.
Plaintiff sued, and we suppose in the course of discovery, discovered FDA-related issues with the generic manufacturer’s ongoing post-marketing research – like there wasn’t any. The following facts were taken as true for purposes of the defendant’s summary judgment motion:
More than a year before these events [that is, plaintiff’s prescription], an international medical journal published a study of the link between NSAIDs and [SJS]. The study revealed that . . . Sulindac had 89 reported cases of [SJS] . . . more than any other NSAID on the market and all but four drugs of any kind. [Defendant] was not aware of that study, however, because it had not been monitoring the medical literature for information about Sulindac’s safety risks. [It] believed that the manufacturer of Clinoril, the brand-name version of the drug, was responsible for such monitoring.
2010 WL 2765358, at *2.
At the time of the prescription, the defendant’s FDA-approved label didn’t mention SJS by name, instead describing it as “hypersensitivity” – albeit specifically mentioning “severe skin reactions” and “fatalities.” Id. Thus, the state of the labeling was something that, on the whole, tended to favor the plaintiff.Continue Reading Bartlett – Not All Pear-Shaped After All
The aberrant Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), decision had its first birthday a couple of months ago – not that we’re celebrating, or anything.
It would be more accurate to say that we’re doing everything we can do to strangle Conte in its crib. If you’re new around
Sometimes (not that often) we run across a decision that so blatantly misses controlling precedent that we have to wonder who was asleep at the switch, the court or counsel. The recent decision, Dorsett v. Sandoz, Inc., 2009 WL 3633874 (C.D.Cal. Oct 28, 2009), is one of those.
We first read Dorsett because it