On Thursday, October 25, 2012, the Fifth Circuit refused to revive the claims of a plaintiff alleging neurological harm from a generic version of Reglan, a heart-burn medication. The plaintiff specifically alleged that brand-name drug manufacturers were liable for generic forms of their products, and cited the U.S. Supreme Court’s ruling in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), as support for her claim.

According to Plaintiff, the Mensing decision eliminated legal immunity for branded drug manufacturers because the immunity was grounded in consumers’ ability to bring state failure-to-warn claims against generic drug manufacturers. The Fifth Circuit rejected Plaintiff’s argument in its entirety, explaining that Plaintiff misinterpreted the state of the case law preceding Mensing. Citing the Fourth Circuit’s ruling in Foster v. American Home Products Corp., 29 F.3d 165 (1994), the court clarified that pre-Mensing case law preventing generic drug consumers from suing brand-name manufacturers was based on interpretation of specific Maryland state law, and not on any outright ability of consumers to sue generic drug-manufacturers. The court, however, noted that it could not “view Mensing as overruling Foster because the court in Foster did not reach its holding by relying on the ability of a plaintiff to sue generic manufacturers.” The Foster court, instead, interpreted Maryland law to conclude that “a name-brand manufacturer has no duty of care to consumers that are not using the manufacturer’s product.” The court further opined that the assumption that generic drug-makers could be sued was no longer valid in light of Mensing; however, the court held that “this fact does not impose on name-brand manufacturers a duty of care to customers using generic products.” Accordingly, the court ruled that decisions in Louisiana relying on Foster were still valid after Mensing, especially considering that the “Fourth Circuit decision about Maryland law would have no effect on Louisiana law.”

The court, therefore, held that the U.S. Supreme Court’s ruling in Mensing did not impose liability on brand-name drug manufacturers for claims arising from generic versions of their products.

For more information, please refer to Demahy v. Schwarz Pharma, Inc., No. 11-31073, 2012 WL 5261492 (5th Cir. Oct. 25, 2012).