We greeted the result in Bartlett v. Mutual – that a generic manufacturer could be tagged for $21 million in a product liability case, despite Mensing, on the theory that the manufacturer had the option not to sell the product at all – with derision and dismay. The decision was wrong, even subversive. It stuck a thumb in the eye of the Supreme Court’sMensing analysis and adopted a rationale that no other court has been silly enough to embrace. See our Mensing scorecard. We make no bones about our preference for touting good defense decisions, but we certainly never pretended that Bartlett was not important. It is important. So is the Ebola virus. And the Dallas Cowboys.
- "The petition does not present a question of recurring national importance.”
- “Sulindac is not an essential drug, and petitioner presented no contrary evidence.”
Turns out the Bartlett case was not so important after all. Nothing to see here, Justices, move along.
- The federal duty of “sameness” for generics applies to design as much as to the warning.
- After the Supreme Court’s Mensing decision, the Eighth Circuit in Mensing vacated its pre-remand opinion despite the plaintiff’s post-Mensing assertion that “there is nothinginconsistent with the Supreme Court’s decision about holding defendants liable for their failure to suspend sales.”
- The Sixth Circuit, in Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011), affirmed judgment for generic manufacturers despite plaintiffs’ post-Mensing claim that the defendants’ “decision not to suspend sales and to continue selling their [generic product] is [both] actionable [and] wholly consistent with Mensing” because “no federal statute or regulation prohibited them from ‘independently’ suspending sales of their product.”
- Bartlett’s reasoning “blasts a gaping hole in Mensing.” Put simply, the Bartlett rationale would have produced adifferent result in Mensing.
- The First Circuit itself in Bartlett acknowledged “tension” between its reasoning and Mensing, and practically begged the Supreme Court to take a look.
We would add two more points about what’s wrong withBartlett and why the Supreme Court needs to administer a fix:
- Bartlett is perversely reasoned. It begins its preemption analysis, not with Mensing, but with Wyeth v. Levine. The First Circuit concludes that Wyeth v. Levine established a general no-preemption rule. Only then does the First Circuit mention Mensing, and construes it as a narrow exception that does not apply here because Mensing was a failure to warn case, not a product defect case. Here is what is so weird about that bit of terpsichorean jurisprudence: Wyeth v. Mensing, too, was a failure to warn case, not a design defect case. Moreover,Mensing, like Bartlett, involved a generic manufacturer. Wyeth v. Levinedid not. Bartlett takes preemption through the looking glass. Pernicious nonsense reigns.
- As we discussed in one of our many earlier posts about Bartlett, the defendant got mightily hosed because, even after winning dismissal of the failure to warn case, and even after deciding to waive its comment k defense just to make sure failure to warn would not sneak into the case, the plaintiff still managed to parade the warning before the jury, despite the usual, feckless limiting instruction. A little truth please: Bartlett might have been dressed as a design defect case, but like most DDL cases it centered on failure to warn.