Those of you who check our post-Mensing generic preemption scorecard regularly are aware that a preemption massacre has been going on in Louisiana federal court. By our count, just since October there have been eight preemption-related dismissals down in pelican country (don’t blame us, y’all put it on your license plate). Most of them have been pretty cut and dried, but the recent decision in Whitener, v. PLIVA, Inc., 2011 WL 6056546 (E.D. La. Dec. 6, 2011), warrants special mention.
In Whitener the plaintiffs made three arguments against preemption. The court rejected two and told plaintiffs to replead if they wanted to pursue the third. The first argument played off a footnote in Mensing, 131 S.Ct. at 2574 n.1, that the Court “express[ed] no view on the impact of the 2007 [FDAAA].” Plaintiffs claimed that, since their use of the drug was after FDAAA was passed, Mensing didn’t apply. Okay, but so what? The plaintiff couldn't say. It was a distinction without a difference. The court found absolutely nothing FDAAA that altered the Food, Drug and Cosmetic Act (“FDCA”) in any relevant way...
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