Not All Sunshine and Santa Claus For Generics Post-Mensing

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When the Supreme Court decided Mensing, we imagine generic drug manufacturers felt like Stephen Sondheim’s “Everything’s Coming Up Roses” was written just for them. But, to borrow from another Broadway hit, they may now be asking the District of South Carolina “Don’t Rain on My Parade.”

Not surprisingly, as our generic preemption scorecard reveals, generic plaintiffs are throwing anything and everything at the walls in the hope that something sticks. And, some courts have been more accommodating to them than others. The most recent decision to keep claims against generic manufacturers alive is Fisher v. Pelstring, C.A. No. 4:09-cv-00252-TLW, slip op. (D.S.C. Sept. 30, 2011). Due to our involvement in the metoclopramide litigation, we can’t offer extensive comment, but we can report what happened.

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