In an unpublished opinion file on April 9, the Court of Appeals for the 5th Circuit affirmed a previous decision in one of the Reglan generics cases, Whitener v. Pliva, Inc. This ruling upholds the district court’s grant of summary judgment in favor of the defendant drug companies on the grounds that the defendants performed no off-label promotional activities.
Lindsey and Joshua Whitener’s son was born prematurely and with severe birth defects after Mrs. Whitener used metoclopramide, a generic form of the heartburn drug Reglan. Mrs. Whitener was suffering nausea and morning sickness and her doctor, Dr. John McCrossen, prescribed metoclopramide as an off-label treatment due to previous successes he’d had with the drug.
The FDA-approved label did not mention any warnings regarding used during pregnancy nor did it recommend metoclopramide as a treatment for pregnancy-related nausea. The Whiteners filed suit in 2010 alleging that the drug’s manufacturers failed to warn them of the danger of using their product during pregnancy and also that the manufacturers had engaged in a “complex scheme” of promotion of the off-label use.
Of the six defendants, three were manufacturers of brand name Reglan (Alaven Pharmaceutical L.L.C., Meda Pharmaceuticals, Inc. and Schwarz Pharma, Inc.), which Mrs. Whitener did not use. The other three (PLIVA, Inc., Barr Laboratories, Inc. and Teva Pharmaceutical Industries, Ltd.) made generic metoclopramide, which Mrs. Whitener did use.
A 2011 U.S. Supreme Court ruling in PLIVA, Inc. v. Mensing, held that state law inadequate warning claims against generic drug manufacturers were preempted, as federal law required the generic labels to be the same as the brand name labels. The 5th Circuit granted defendants’ motions for judgment on the pleadings in the matter of the inadequate warnings. However, it allowed the claim of promotion of off-label use to proceed.
Teva was released from the case due to a jurisdictional issue. The remaining defendants moved for summary judgment on the grounds that the Whiteners could not prove that the premature birth and birth defects were directly caused by any off-label promotion in which they may have engaged. The Whitener’s own doctor, Dr. McCrossen, provided the testimony the court needed to support the motion for summary judgment.
In Dr. McCrossen’s testimony, he stated unequivocally that the decision to prescribe metoclopramide was mad based on his “clinical experience” that the drug “works good to control nausea and vomiting associated with pregnancy.” He further testified that he had never spoken to a representative of the defendants regarding the drug, nor had he been given samples. To the best of his knowledge, no one in his practice had had contact with the defendants either.
Under the court’s Rule 47.5.4, this unpublished opinion is not precedent “except under the doctrine of res judicata…, etc. An unpublished opinion may be cited pursuant to Fed. R. App. P. 32.1(a).” This does not bode well for other plaintiffs with similar claims.
Citing Unpublished Federal Appellate Opinions Issued Before 2007