Claiming that the First Circuit erred by ruling “that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products,” a generic drug maker has filed a petition for review before the U.S. Supreme Court, seeking to overturn an adverse $21.06-million judgment. Mut. Pharm. Co., Inc. v. Bartlett, No. 12-142 (U.S., petition for certiorari filed July 31, 2012). Additional details about the case appear in the May 10, 2012, issue of this Report.
According to the company, the First Circuit’s decision, which rejected the application of the Supreme Court’s PLIVA , Inc. v. Mensing ruling to a design-defect case, creates a split with the Fifth, Sixth, Eighth, and Ninth Circuits and “blasts a gaping hole in Mensing.” The petition challenges the First Circuit’s rationale, i.e., that “the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.”