July 3, 2013

Supreme Court Shields Generic Drug Manufacturers From Design-Defect Claims In Mutual Pharmaceutical Co., Inc. v. Bartlett

Arnold & Porter Advisory

The Supreme Court ruled on June 24, 2013 that, under its 2011 decision in PLIVA, Inc. v. Mensing, state-law "warning-based" design-defect claims against generic drug manufacturers are preempted by federal law. Perhaps most significantly, the Court rejected the First Circuit Court of Appeals' rationale that, because Mutual could have opted to stop selling the drug, impossibility preemption did not exist. The 5-4 decision in Mutual Pharmaceutical Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230 (Jun. 24, 2013) mirrored the same split of justices as in Mensing.

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