Plaintiffs whose claims are filed in the Philadelphia Court of Common Pleas against the manufacturers of the drug Reglan must continue to wait for their day in court. Judge Sandra Moss recently issued an order staying all litigation until all appellate matters can be resolved. Despite the Pennsylvania Superior Court’s denial of the Defendants’ appeals brought under sections 702(b) and 742 of the Pennsylvania Judicial Code, four collateral order appeals on the Mensing issue remain pending. Plaintiffs’ counsel have filed motions to quash these appeals. But, the motions were denied.
In addition to the collateral appeals before the Superior Court, both the generic and brand Defendants have taken their arguments to the Pennsylvania Supreme Court to determine whether claims against them are viable under Mensing. The briefing schedule will take up most of the summer. Therefore, it’s not expected that any discovery or bellwether trials will resume before the fall of this year.
Outside of Philadelphia, Reglan litigation continues to experience a mixed bag of results. Many cases that are not a part of consolidated state court litigation in Pennsylvania, New Jersey or California have been dismissed on summary judgment based on the Mensing decision. But about a third of these dismissals were unopposed by the Plaintiff.
In Alabama, some Reglan cases have been stayed pending a question before the Alabama Supreme Court involving brand name manufacturer liability in these cases. Specifically, brand name drug manufacturers Wyeth and Pfizer have put the following issue before the Alabama Supreme Court: whether a brand name manufacturer can be held liable for harm caused by a generic drug. This argument is rooted in whether or not a brand name manufacturer owes any duty to the injured Plaintiff since the brand manufacturer did not make the drug that the Plaintiff ingested that caused the harm. If the Alabama Supreme Court rules in favor of brand Defendants on this issue, and if Alabama courts find that under Mensing, claims against generic drug manufacturers are preempted, then Alabama residents in particular may have no remedy for injuries caused by generic prescription drugs. That would be a terrible result for them and in my opinion, a miscarriage of justice. Reglan victims deserve their day in court.
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