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'Failure to Warn' Claims Against Generic Manufacturers Not Preempted By Federal Law

By David M. Gossett, Henninger S. Bullock and Daniel L. Ring

The U.S. Court of Appeals for the Eighth Circuit recently held that “failure to warn” claims brought against generic manufacturers of Reglan' (a prescription drug used to treat certain gastric disorders) were not preempted by federal law and could, therefore, proceed to discovery. The Eighth Circuit's decision in Mensing v. Wyeth, Inc. (http://druganddevicelaw.net/Opinions%20in%20blog/Mensing.pdf) rejected the generic manufacturers' argument that the Food, Drug and Cosmetic Act (FDCA) impliedly preempted state law tort claims relating to the labeling of the drug.

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