The Mensing Preemption and the Learned Intermediary Doctrine

However, a minority of courts have been hesitant to adopt this broad interpretation of Mensing, and have chosen instead to carve out claims that can survive a preemption challenge. Indeed, several courts have rejected preemption for claims alleging a generic drug manufacturer failed to timely update its labeling to correspond with label changes to the brand-name equivalent or reference listed drugs, while other courts have held that claims premised upon a purported failure to communicate a label change to health care providers through broader dissemination means such as a “dear doctor letter” are not preempted. See, e.g., Fisher v. Pelstring, No. 4:09-cv-00252-TLW, 2011 WL 4552464, at *10 (D.S.C. Sept. 30, 2011) (recognizing failure-to-update and failure-to-communicate claims); Couick v. Wyeth, No. 3:09-cv-210-RJC-DSC, 2012 WL 77670, at *3-5 (W.D.N.C. Jan. 11, 2012) (recognizing failure to update claim). However, while focusing on the Mensing preemption analysis and attempting to carve out remaining exceptions that the Mensing court never recognized, these courts have often overlooked the effect that the Learned Intermediary Doctrine and basic differences between the sales and marketing practices for generic and brand-name drugs have on these types of claims.