The following is a requested update on the Reglan litigation in Philadelphia. Even though a state trial judge there has overruled generic drug manufacturers’ preliminary objections seeking dismissal of the claims asserted against them, the viability of the Plaintiffs’ claims are still in question and could be subject to further delay. Recently, generic drug manufacturers involved in the Philadelphia litigation jointly filed a petition for permission to appeal Judge Moss’ order to the Superior Court of Pennsylvania.
Under Pennsylvania law, the Defendants are permitted to appeal under sections 702(b) and 742 of the Pennsylvania Judicial Code when there is an order involving a controlling question of law to which there is a substantial ground for difference of opinion that an immediate appeal from the order may materially advance the ultimate determination of the matter. Here, the controlling question of law is whether, under Mensing, Plaintiffs’ claims against generic Defendants are preempted by federal law.
Many courts, including the 5th, 6th, and 8th Circuit Courts of Appeal, as well as district courts in Louisiana, Arkansas, Florida, Indiana, Georgia and New Jersey, have all dismissed state law claims raised against generic drug manufacturers. To add further support to their argument that appeal is proper under the circumstances, the generic Defendants also argue that Judge Moss’ decision was a collateral order separable from and collateral to the main cause of action, making the issue immediately appealable.
Plaintiffs who have filed suit around the country contend that Mensing may preempt failure to warn claims, but that does not imply that Mensing granted generics immunity from all tort liability. Specifically, generics are not preempted from failing to adequately communicate warnings that are consistent with information found in the labeling of its brand-name counterpart. In fact, it was alleged before the trial court in Philadelphia that no Reglan manufacturer, generic or brand, communicated the 2004 label changes, which specifically warned that drug therapy with Reglan/metoclopramide should not exceed twelve weeks, to physicians. It was this failure to communicate that led to the chronic over-prescribing of the drug and the multitude of injuries that resulted.
After Judge Moss’ ruling, the bellwether trial process reconvened in Philadelphia with the first trial set to begin in May 2012. It is unknown at this time whether the generics’ petition for appeal will disrupt the upcoming trial settings. If you need more information on this subject, contact Danielle Mason at 800-898-2034 or by email at Danielle.Mason@beasleyallen.com. Danielle has been actively involved in this litigation.
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