After recent posts on the AHM (or Hippo) litigation, we read the excellent FDA reply brief and considered yet another post on the subject. With the oral argument before the Fifth Circuit yesterday and more briefs and decisions to come, we elected to deal with a topic that was not quite so weighty. In
E.D. Louisiana Dismisses Antiperspirant/Benzene Claims—Again
We are in New Orleans for the annual DRI Drug & Medical Device Seminar, so we would be remiss if we passed up the opportunity to write on a Louisiana case. The case will sound familiar. We reported six months ago on the dismissal of a case brought by the same plaintiff alleging that benzene…
Another Acetaminophen Step in the Right Direction
Last week we told you about two decisions in the In re Acetaminophen − ASD-ADHD Products Liability Litigation, MDL No. 3043, that were improvements over last November’s debacle of a preemption decision. Today we report on a decision that makes it a trilogy. We are still reserving judgment, but with hope.
This MDL is…
OTC – One Terrible Class Action – Dismissed
One of 2022’s top-ten cases, In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2022 WL 17480906 (S.D. Fla. Dec. 6, 2022), opened with a 4-page critique of the shortcomings of the product testing conducted by a purportedly “independent” laboratory that touched off that massively meritless MDL litigation. Id. at *1-4.
More bogus product “testing” formed the basis for Sapienza v. Albertsons Companies, Inc., et al., 2022 WL 17404919 (D. Mass. Dec. 2, 2022), which was likewise dismissed four days earlier, only on preemption rather than Rule 702 grounds. Sapienza was a putative nationwide class action based on allegations that “independent testing” showed the defendant’s over-the-counter (“OTC”) “rapid release” acetaminophen product “dissolve[d] more slowly than” similar products that were not labeled “rapid release.” Id. at *1. The rest of the complaint consisted of the usual boilerplate economic loss/“premium” pricing claims. Id.…
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Southern District of New York Puts Non-Drowsy Labeling Claims To Bed
It’s the start of cold and flu season, so why not talk about cough syrup. Most cough medicines come in two versions – daytime and nighttime. The nighttime version typically contains an antihistamine which are known to cause drowsiness. Daytime versions often contain an expectorant (to thin and loosen mucus) and a cough suppressant. A common cough suppressant is dextromethorphan hydrobromide (DXM). That is the ingredient at issue in Goldstein v. Walmart, Inc., 2022 U.S. Dist LEXIS 196743 (S.D.N.Y. Oct. 28, 2022).
Walmart sells its own brand of OTC cough medicine containing DXM and the label says “Non-Drowsy.” Plaintiff alleges she relied on that statement in selecting the medicine and she became unexpectedly drowsy after taking it. She filed a putative class action alleging breach of express warranty, breach of the Magnuson-Moss Warranty Act, and violations of various state consumer protection laws. Defendants moved to dismiss all claims as preempted.
The federal regulations governing OTC medicines are found in monographs which are promulgated by the FDA and set the approved active ingredients for a class of drugs as well as any conditions under which they are considered safe and effective. Id. at *7-8. There is a monograph for Cold, Cough, Allergy, Bronchodilator and Antiasthmatic drugs. It requires certain products in this class to carry a warning that the drug may cause drowsiness. DXM is not one of them. Id. at *8.
The FDCA has an express preemption clause for OTC drugs – requirements that are “different from or in addition to” or “not otherwise identical with” the FDCA are preempted. Product liability claims have an exception, but this is not a products case. The opinion does a thorough walk through of the relevant case law. Id. at *21-31. Plaintiff tried to squeeze her claims through a small gap in the preemption window: “preemption does not preclude a state-law claim if the state requirement is outside the scope of the relevant federal requirements.” Id. at *23. Courts within the Southern District of New York have approached the scope question and reached slightly different conclusions. …
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Zantac Chronicles IV – The Preponderance of Preemption
The first three significant Zantac MDL decisions, which we chronicled here, here, and here, were all issued on December 31, 2020. Today’s installment, In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2021 WL 76433 (S.D. Fla. Jan. 8, 2021), was issued this year. For those of you who…
CARES Act Dooms Claim Targeting the Marketing of “Infant” Acetaminophen
Today’s post is a report on Jazmine Harris v. Topco Associates, LLC, ___ F. Supp.3d ___, 2021 WL 1885981 (N.D. Ill. May 11, 2021), which dismissed on preemption grounds a putative class action that challenged as fraudulent the marketing of acetaminophen for infants. The decision, whose result departs from earlier decisions in the area,…