Just yesterday we made the following observation: a design defect claim is often a make-weight claim. How should the design have been improved? Not selling the product at all is hardly a design improvement. An entirely different product is not a safer alternative under the law of any enlightened state. Changing the molecule or the device design cannot be done without FDA approval, so preemption should apply (even if courts often miss this point).

And miss the point the court did in In re: Xarelto Prods. Liab. Litig., 2017 U.S. Dist. LEXIS 56629 (E.D. La. Apr. 12, 2017). Plaintiffs in the Xarelto MDL allege that the anti-coagulant drug caused serious bleeding events and that the drug was unreasonably dangerous due to its defective design. Id. at *3. As we noted yesterday, true design claims, as opposed to failure to warn claims, aren’t the crux of most pharmaceutical drug cases. But the Xarelto plaintiffs went that route and so defendants raised preemption as a defense. Unfortunately, to no avail.

Xarelto is an anti-coagulant drug that is taken once a day and all patients are given the same dosage without the need for routine monitoring. Id. Plaintiffs argue that patients’ reactions to the drug vary causing some to experience bleeding complications. Id. at *3-4. It is undisputed that both the dosing and monitoring specifications were approved by the FDA. Id. at *4. So, if the FDA approved the design, what do plaintiffs say the manufacturer could have done differently? Essentially, plaintiffs’ position boils down to the manufacturer should not have sold Xarelto but should have developed and sought FDA approval of a different product. Wait. We’ve been down this road before and the Supreme Court found such claims preempted. Mutual Pharm. Co. v. Bartlett, 133 S. Ct. 2466 (2013).

Before we get to Bartlett, let’s look at the specific design defects plaintiffs alleged in this case. First, the manufacturer should have designed an assay to allow doctors to monitor the effects of the drug on each patient. Second, the manufacturer should also have designed and marketed an antidote to counteract a major bleeding event. Third, in the absence of the first two, the manufacturer should have warned about the availability of other tests to measure anticoagulation. Id. Putting aside failure to warn, a claim that the manufacturer should have submitted a different version of the drug to the FDA for approval is the functional equivalent of the “stop-selling” claim that the Court found preempted in Bartlett.

Now that we are back to Bartlett, we should point out that the Xarelto court wrongly discounts defendants’ reliance on it, saying that it relates to generic drug manufacturers, not name brand manufacturers. Id. at *7-8. While it is true that that drug at issue in Bartlett was a generic, the rulings are in Bartlett are not so limited, and certainly not on the very issue germane to this case. The Court in Bartlett went out of its way to state, “[o]nce a drug − whether generic or brand-name − is approved, the manufacturer is prohibited from making any major changes to the ‘qualitative or quantitative formulation of the drug product, including active ingredients, or in the specifications.’” 133 S. Ct. at 2471 (quoting 21 C.F.R. §314.70(b)(2)(i)) (emphasis added). Instead the Xarelto court, in its discussion of design defect, relies more on Wyeth v. Levine, using that decision on failure to warn claims to suggest that preemption is not as clear for brand manufacturers. But the distinction between Bartlett and Wyeth isn’t that one involved a generic and one involved a brand. It’s that Bartlett dealt with design defect and the court’s failure to follow the preemptive logic of Bartlett in this context is an error – at least in our books.

The way the court appears to get around Bartlett is by drawing an artificial distinction between “pre-approval” and “post-approval” design defect claims. Id. at *10. But, as noted above a pre-approval design defect claim is the same thing as saying the manufacturer should stop selling the current product – that it never should have been brought to market. But it was. And only after the FDA reviewed and approved it, including its dosage and monitoring specifications. A design defect claim is about whether the product at issue – the one that was sold and marketed and used by plaintiffs – was defectively designed and whether there is a feasible alternative design. By focusing on the “pre-approval” time period, the court is basically inviting the jury to second guess the FDA’s approval of the drug — a question clearly not meant for a jury. If the court had focused on the “post-approval” product, the actual product at issue, the design defect claims would fall squarely into Bartlett preemption.

But the court didn’t and so we add this to the list of cases that simply miss the point.