Last week, Bradley Arant Boult Cummings LLP helped Pfizer (legacy Wyeth) secure dismissal of several Reglan/metoclopramide cases pending in the Superior Court of New Jersey and federal court in Mississippi. Both courts rejected plaintiffs’ “innovator liability” theory, that Wyeth (and others) – as the one-time manufacturers of brand-name Reglan – should be held liable for injuries allegedly caused by plaintiffs’ use of the generic equivalent, metoclopramide, manufactured by other companies. BABC heads the legal strategy team for Pfizer’s Reglan litigation and principally drafted the winning briefs.
First, Judge Carol Higbee, in eight cases included in the consolidated Reglan litigation pending in the Superior Court of New Jersey, held that, under New Jersey law, plaintiffs who used only generic drug products do not have a cause of action against brand-name drug manufacturers. See Coundouris v. Wyeth, No. ATL-L-1940-10, slip op. (N.J. Super. Ct. Law Div. June 26, 2012). Judge Higbee dismissed all the claims asserted by New Jersey-resident plaintiffs who had used only generic metoclopramide. Even though the plaintiffs had framed their claims in negligence and fraud/misrepresentation terms, Judge Higbee concluded that those claims were actually product-liability claims governed by New Jersey’s Product Liability Act, which requires a plaintiff to prove that her injuries were caused by the defendant’s product. Importantly, Judge Higbee expressly declined to follow Conte v. Wyeth, Inc., 85 Cal. Rptr. 3d 299 (Cal. Ct. App. 2008), the first decision to hold that brand-name drug manufacturers owe a duty of care to users of their competitors’ generic equivalents. Judge Higbee also rejected the argument that the U.S. Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) – which held that state-law failure-to-warn claims asserted against generic drug manufacturers are preempted by federal law – somehow breathed life into state-law claims against brand-name drug manufacturers. Some 900 cases remain pending in the consolidated litigation.
Second, Judge Halil Ozerden of the Southern District of Mississippi granted summary judgment to the manufacturers of brand-name Reglan under Mississippi law. See Lashley v. Pfizer, Inc., No. 1:09-cv-749-HSO-JMR (S.D. Miss. June 27, 2012). Judge Ozerden held that, because the plaintiff had ingested only generic metoclopramide manufactured by other companies, the brand-name manufacturers could not be held liable under any theory. That decision was based, in part, on the brand-name manufacturers’ ability to distinguish the Mississippi Supreme Court’s decision in Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024 (Miss. 2011), and argue that the Mississippi Product Liability Act subsumes all claims for harm caused by a product manufactured by other companies.
With these two additions, the tally against the so-called “innovator liability” theory now stands at 66 decisions. Only two decisions stand to the contrary, and, since the Supreme Court’s decision in Mensing, every court that has considered the theory has rejected it.
