Anybody interested in generic drug preemption undoubtedly remembers Bartlett v. Mutual Pharmaceutical Co., 659 F. Supp. 2d 279 (D.N.H. 2009), as one of the earliest detailed examinations of such arguments post-Levine.  Whether one agrees with the conclusions of that decision or not (we mostly don’t), it certainly demonstrated that Judge Laplante was almost as thorough and conscientious an opinion writer as the late Ed Becker of the Third Circuit.  We do not make that comparison lightly.
Well, there’s now a second Bartlett opinion – Bartlett v. Mutual Pharmaceutical Company, Inc., 2010 U.S. Dist. Lexis 69825 (D.N.H. July 12, 2010), and not only is it just as detailed – but the defendant does considerably better (although not entirely so).  There are a lot of issues, so we’ll just highlight them here:
Adequacy of warning – The court refuses to hold as a matter of law that the warning was adequate – that “hypersensitivity” and “severe skin reactions” were the legal equivalent of a specific warning about Stevens-Johnson syndrome, which is frequently fatal.
Warning causation – Summary judgment is granted on warning claims based upon the prescriber’s admitted failure to read the defendant’s warnings.  There is a lengthy discussion of this recurring issue.Continue Reading A Second Significant Decision in Bartlett v. Mutual Pharmaceutical