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Dangerous Drugs & Medical Devices News & Commentary on Prescription Drug & Medical Device Lawsuits

Solicitor General Files Brief in Pliva v. Mensing, Rejects Preemption

Posted in Preemption

A little late, but better than never.  Especially since the Solicitor General agrees that failure to warn lawsuits against generic manufacturers are not preempted by the FDCA:

The court of appeals correctly rejected petitioners’ contention that respondent’s failure-to-warn claims are categorically preempted by the FDCA, and its decision is consistent with the decision of the only other court of appeals to address the question since Wyeth v. Levine, 129 S. Ct. 1187, 1196 (2009).

This issue will eventually wind its way up to the Supreme Court, but I’m going to guess that it will not be in this case.  (This case was a Reglan lawsuit in which a woman took metoclopramide, which is the generic version of Reglan.)

For your convenience, here is a copy of the Solicitor General’s brief.