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Page 502 DEFENSE COUNSEL JOURNAL–October 2012divergence, courts appear to beconsistently rejecting plaintiffs’attempts to use Mensing as a means ofcausing brand-name manufacturers tobe liable for other companies’ genericpharmaceutical products, which wouldresult in a reversal of courts’ generalrejection of innovator liability. 26 As the26 E.g., Smith v. Wyeth, Inc., 657 F.3d 420,423-424 (6th Cir. 2011); Phelps v. Wyeth,Inc., No. 09-CV-6168, 2011 U.S. Dist.LEXIS 154631, *4-*8 (D. Or. Nov. 11,2011) (Mensing does not change Oregon lawthat a manufacturer cannot be held liable forinjuries caused by its generic competitor’sproducts); Metz v. Wyeth LLC, No. 8:10-cv-2658, 2011 U.S. Dist. LEXIS 135667,*6-*7 (M.D. Fla. Nov. 18, 2011) (explainingthat the Fourth Circuit’s decision in Foster v.American Home Products Corp., 29 F.3d165 (4th Cir. 1994), remains good lawfollowing Mensing, and that Florida lawprovides that, “irrespective of whetherconsumers could recover from generic drugmanufacturers, a brand name manufacturersimply had no duty of care to individualconsumers that did not use the named brandmanufacturer’s product”); Coundouris v.Wyeth, ATL-L-1940-10 6-7 (N.J. Super.Law Div. June 26, 2012) (slip op. 6-7)(applying New Jersey law wherein “anessential element of a plaintiff’s prima facieproducts liability action case is proof thatthe manufacturer actually produced theproduct which gave rise to the plaintiff’sinjury[,]” to dismiss claims against brandnamemanufacturers of the genericpharmaceuticals ingested by plaintiffsstating that, “Mensing did not address orimpact . . . whether a brand-namemanufacturer owes a duty to a patient whoingested a drug that the brand-namemanufacturer did not make or sell. BecauseMensing did not alter New Jersey law, the[New Jersey Product Liability Act] and caselaw continue to govern”).Sixth Circuit plainly stated in Smith v.Wyeth, “[a]s have the majority of courtsto address this question, we reject theargument that a name-brand drugmanufacturer owes a duty of care toindividuals who have never taken thedrug actually manufactured by thatcompany.” 27While the courts continue toaddress the changed landscape causedby Mensing, a bill has been presented inboth houses of Congress that wouldlegislatively un-do the pre-emptionfound by the Supreme Court. 28 ThePatient Safety and Generic LabelingImprovement Act was filed in theSenate by Patrick Leahy of Vermontand a corollary was introduced byRepresentative Christopher Van Hollenof Maryland in the House ofRepresentatives. The bill proposesamending Section 505(j) of the federalFood, Drug, and Cosmetic Act 29 to addan additional section that expands thelabeling abilities of genericpharmaceutical manufacturers to permitthem to change the labeling of apharmaceutical. The bill proposingadding the following language to thestatute:(11)(A) Notwithstanding any otherprovision of this Act, the holder ofan approved application under thissubsection may change thelabeling of a drug so approved inthe same manner authorized byregulation for the holder of an27 Smith, 657 F.3d at 423-424.28 See 158 CONG. REC. No. 56, S2498 (dailyed. Apr. 18, 2012).29 21 U.S.C. 355(j).