PA Supreme Court holds claims are not Mensing failure-to-warn claims; rejects impossibility preemption
NCLC urged the Superior Court of Pennsylvania to dismiss state law “failure to warn” claims against generic brand drugs, consistent with the U.S. Supreme Court’s ruling in Plivia, Inc. v. Mensing. In this case, plaintiffs attempted to “plead around” Mensing’s clear ruling by rephrasing their run of the mill failure-to-warn claims as “failure to communicate” claims. In its amicus brief, NCLC argued that the claim that generic manufacturers must follow a state law duty to communicate “adequate” or “effective” warnings is still an alleged failure to warn, and imposes the same “impossible” choice that the claims in Mensing did, requiring generic manufacturers to change their labeling, when the essential underpinning of the federal system requires that generic and brand products (including their labels) be exactly the same. Forcing the generic manufacturers to re-wage the Mensing battle against 2,000 plaintiffs, wielding various and contradictory interpretations of the laws of 50 states, would impose unfair and crippling litigation burdens through additional discovery, motion practice, and protracted uncertainty. Just as the Supreme Court did in Mensing, numerous courts have dismissed state law claims based on Mensing without particularized examination of the laws of the plaintiffs’ states. This court should do the same.
The Pennsylvania Supreme Court rejected the defendant companies' argument that the claims were Mensing failure-to-warn claims and their argument that impossibility pre-emption should apply.
Amicus brief filed 5/2/12. Decided 7/29/13.