The United States Supreme Court today issued an order declining a generic pharmaceutical manufacturer’s petition for a writ of certiorari. The drug manufacturer had sought to challenge a ruling from the Iowa Supreme Court. In that state court ruling, the Iowa Supreme Court found that the U.S. Supreme Court’s preemption decision in Mensing did not necessarily prohibit failure to update claims. The U.S. Supreme Court’s decision in Mensing held that failure to warn claims brought against generic drug manufactures were preempted.
The plaintiffs’ attorneys have worked diligently since the Mensing decision to craft theories of liability that would not fall under the preemption ambit of Mensing. In the Iowa case, the state court allowed claims against the generic manufacturer to proceed where they were not brought under the sameness requirement of the Hatch-Waxman Act (requiring labels on generics to match the label on the branded pharmaceutical). Rather, the state court found that the plaintiff had couched her claims as a failure to timely update.
Generic-drug preemption has long been one of the key battlegrounds in pharmaceutical product liability litigation. We have previously reported on the Mensing case in November, September, and August of 2013.
The plaintiffs’ attorneys will use the U.S. Supreme Court’s denial of certiorari in this case to buoy their arguments that tort claims based on state law theories involving failure to update are not preempted by Mensing. While Mensing was a boon for the generic pharmaceutical industry, it is not a complete shield to all state law tort claims, at least for now.
The case discussed above is U.S. Supreme Court number 14-544.
