Covington, Ky., federal district court judge Danny Reeves dismissed nearly three dozen suits in federal multidistrict litigation over the painkillers, citing the Supreme Court’s June 2011 ruling in Pliva, Inc. v. Mensing that federal generic drug regulations preempt state law failure-to-warn claims. The decision will directly impact 33 consolidated suits in the case, but Skadden’s Mark Cheffo said in a statement that the ruling “should ultimately apply to each of the over 700 claims pending against the myriad generic defendants in the MDL.”
Cheffo and Lori Cohen of Greenberg Traurig argued the generics’ motion to dismiss for their respective clients, Vintage Pharmaceuticals and Teva Pharmaceuticals USA, and for nine other defendants in the case. The MDL itself only has 167 suits, though many of those include multiple plaintiffs. Greenberg Traurig’s Cohen told us that lawyers for plaintiffs in the MDL have indicated that they could still file another 3,000 to 8,000 claims. “Certainly we think the impact of this decision will be sweeping,” she said.
In a sign of how crucial the plaintiffs lawyers heading the litigation took the motion, they called in Lou Bograd of the Center for Constitutional Litigation, who argued before the Supreme Court in Mensing, to try to fend off the defendants’ dismissal motion. Bograd declined comment. Plaintiffs steering committee members, including Dianne Nast of Roda Nast in Philadelphia and Richard Schulte of Behnke Martin Schulte in Vandalia, Ohio, did not respond to requests for comment.
In the wake of the Mensing decision, the plaintiffs lawyers tried to skirt the preemption issue by arguing that they no longer claimed the defendants failed to warn consumers about the potential harm of taking generic Darvon. Instead, they contended, the companies “wrongfully marketed an unreasonably dangerous product” that they should have withdrawn based on evidence that it harmed patients.
Judge Reeves rejected those arguments on Monday. “While the plaintiffs attempt to get around Mensing by asserting ‘failure to withdraw’ rather than failure to warn, they have not demonstrated that their so-called wrongful marketing claims escape preemption,” he wrote.
The decision is another big post-Mensing win for generic drug makers, which have already relied on the Supreme Court’s ruling to knock out cases over generic versions of Aredia and Fosamax. But Mensing has its limits too, as defendants learned when a state state court judge in Philadelphia refused to dismiss 2,000 lawsuits over generic Reglan last year.