Litigation: Post-Mensing sands still shifting on generic design defect claims

Clarity may be coming when the Supreme Court hears Mutual Pharmaceutical Co. Inc. v. Bartlett

Pharmaceutical companies anticipate that the next several months will provide needed clarity and consistency regarding the pre-emption landscape for manufacturers of generic pharmaceutical products, with the Supreme Court scheduled to hear oral argument on March 19 in Mutual Pharmaceutical Co. Inc. v. Bartlett.

Bartlett is an appeal from the 1st Circuit's upholding of a $23 million award to plaintiff Karen Bartlett, on the basis that claims that a generic manufacturer defectively designed a drug are not pre-empted by the Hatch-Waxman Act. The 1st Circuit distinguished design defect claims from claims that a generic manufacturer failed to adequately warn of a drug's risks, the latter of which were held to be pre-empted by the Supreme Court in its 2011 Pliva, Inc. v. Mensing decision due to the federal requirement that the label on generic products mirror that of its name-brand counterparts. Design defect claims are distinguishable, according to the 1st Circuit, due to a generic manufacturer's discretion to stop manufacturing a drug which is determined to be defective or unreasonably dangerous under state law. The court reached this conclusion despite its own acknowledgement that generic drugmakers have no more control over or ability to change a drug's design than they do to change a drug's label—the cornerstone conclusion of the Mensing ruling.

Contributing Author

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Emily Turner Landry

Emily Turner Landry is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Memphis).  She concentrates her practice in the defense of personal injury...

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