In Pliva, Inc.  v. Mensing, 131 S.Ct. 2567 (2011), the U.S. Supreme Court held that failure-to-warn claims against the manufacturers of generic prescription drugs were preempted by the Federal Food, Drug, and Cosmetic Act. In the wake of this decision, two courts recently issued opinions that permit plaintiffs injured after taking generic prescription drugs to pursue different claims against generic and brand-name prescription drug manufacturers.

In Wyeth, Inc. v. Weeks, the Alabama Supreme Court, answering a question certified to it by the U.S. District Court for the Middle District of Alabama, held that a brand-name drug manufacturer may be held liable for fraud or misrepresentation, based on statements it made in connection with the manufacture of a brand-name prescription drug, by a plaintiff who was physically injured by a generic version of that drug. The Alabama Supreme Court noted that the vast majority of the cases that came to the opposite conclusion preceded the U.S. Supreme Court’s decision in Mensing, and falsely presumed that generic manufacturers could be held responsible for the representations on their labels. Trial News, an electronic publication of the American Association for Justice, quoted CCL’s Louis Bograd on February 7, 2013, calling the Alabama decision “a lifeline to plaintiffs injured by inadequately labeled generic drugs.”  The Alabama Supreme Court also found that earlier cases had conflated strict products liability and tort law. The decision in Weeks is in line with the California Court of Appeals’ decision in Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (2008), which was argued by CCL’s Valerie M. Nannery.

In Arters v. Sandoz Inc., the U.S. District Court for the Southern District of Ohio allowed a man blinded by the generic drug amiodarone to pursue design defect claims against the manufacturer of the drug, while holding that his state law failure-to-warn claims were preempted by federal law. The court also allowed the plaintiff to move forward on claims sounding in negligence, breach of implied warranty and fraud for the manufacturer’s promotion of off-label use of the drug. While recognizing that under the Supreme Court’s ruling in Mensing, federal law requires generic drugs to have the same labels as their name-brand counterparts, the court noted that federal law does not require generic manufacturers to sell an unreasonably dangerous product in Ohio or to promote their drugs for off-label use. Thus, the court denied, in part, the manufacturer’s motion for judgment on the pleadings.

On March 19th, the United States Supreme Court will hear arguments in Mutual Pharmaceutical Co. v. Bartlett, which presents the question of whether state law claims against manufacturers of generic prescription drugs for design defects are preempted by federal law. CCL’s Bograd, representing plaintiffs in the Darvon litigation, and CCL’s Andre Mura, representing AAJ, are preparing amicus curiae briefs in Bartlett.