We defend product liability and tort lawsuits involving drugs and pharmaceuticals, including national and regional litigation, multidistrict proceedings, and mass torts claims. Our lawyers counsel clients on a broad spectrum of issues pertinent to the drug and pharmaceuticals industry, including product labels, warranties, disclaimers and limitations of liability, and litigation risk analysis and avoidance.
Notwithstanding the United States Supreme Court’s decision in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the United States Court of Appeals for the First Circuit recently issued a ruling inBartlett v. Mutual Pharm. Co., 2012 WL 1522004 (1st Cir. May 2, 2012), holding plaintiffs can still bring design defect claims against generic manufacturers. The court stated while generic manufacturers have no choice as to the label, the decision to make and market the drug is wholly their own. Although plaintiffs have lost their warning claims by the mere chance of the drug store’s selection of a generic, “the Supreme Court might be less ready to deprive [plaintiff] of her remaining avenue of relief.” Thus, the First Circuit concluded the United States Supreme Court adopted a general no-preemption rule in Wyeth v. Levine, 555 U.S. 555 (2009), and the Supreme Court must decide whether Mensing’s exception for failure-to-warn claims is to be enlarged to include design defect claims.