The Center for Constitutional Litigation today filed a brief in the United States Supreme Court in opposition to the petition for a writ of certiorari filed by Teva Pharmaceuticals USA and Pliva, Inc. in Teva Pharmaceuticals USA, Inc. and Pliva, Inc. v. Hassett, the third cert petition to arise out of the mass tort litigation in Philadelphia on behalf of persons injured by generic metoclopramide, In re Reglan/Metoclopramide Litigation.
In Pliva, Inc. v. Mensing, the Supreme Court ruled that federal food and drug law preempts state tort claims against generic drug manufacturers where federal law prohibits a drug company from complying with its duties under state law. Despite this clear holding, generic drug companies have argued that Mensing is a “get out of jail free” card for all state tort claims against them, even claims involving state law duties that do not conflict with federal requirements. Numerous courts, including the Pennsylvania Superior Court here, have rejected these arguments. Generic drug companies have now sought Supreme Court review of these rulings on four separate occasions. CCL has consistently opposed these efforts on behalf of persons injured by dangerous generic drugs. In the brief filed today in opposition to the petition for certiorari in Hassett, CCL Chief Litigation Counsel Louis Bograd argues, inter alia, that the Supreme Court lacks jurisdiction to review an interlocutory decision by the Pennsylvania state courts; that there is no split of appellate authority warranting the Supreme Court’s intervention; that the FDA has expressly rejected Teva and Pliva’s arguments and that the agency’s position is entitled to deference; and that, for numerous reasons, the Hassett case would be a poor vehicle for Supreme Court consideration of the questions presented. Bograd was assisted on the brief by CCL’s Jeffrey White. The Supreme Court will decide whether to grant the petition and hear this case near the end of May.
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