Generic Reglan/Metoclopramide cases filed in state court in Pennsylvania continue to sit in the legal limbo the U.S. Supreme Court’s PLIVA v. Mensing decision of 2011 placed them in when the court voted 5-4 to essentially give generic drug makers a free liability pass.
A panel of three Penn. Superior Court judges met in November to hear oral arguments regarding the fate of more than 2,300 Philadelphia Court of Common Pleas cases in which plaintiffs allege that generic versions of metoclopramide (brand name: Reglan) caused them to suffer tardive dyskinesia, an incurable neurological disease. The judges heard arguments from the brand-name maker, Wyeth (Morton Grove); the generic drug makers; and a Penn. lawyer who represented all the plaintiffs.
Judge Mary Jane Bowes asked whether, if all brand-name manufacturers withdrew from the market and left only generic drugs available, would that mean “plaintiffs who are injured can sue no one”?
Defense argued that Mensing protects them from any and all liability and only Congress can fix the conundrum left in the wake of the U.S. Supreme Court’s Mensing decision.
The lawyer representing all the plaintiffs, Howard Bashman, said that Mensing did not pre-empt two types of failure-to-warn claims: failing to update labeling and failing to communicate the actual label to prescribers.