Moretti v. Mutual Pharmaceutical Co.
2012 U.S. Dist. LEXIS 17453
D. Minnesota2012Background
- Nevada plaintiff sues generic Reglan/metoclopramide manufacturers for injuries from long-term use (Aug 2003–Apr 2004).
- Plaintiff alleges various state and federal claims including misrepresentation, false advertising acts, and consumer fraud.
- Action stayed pending Supreme Court decision in Actavis, Inc. v. Demahy and PLIVA, Inc. v. Mensing; stay lifted to address preemption issues.
- Supreme Court decision in Mensing held state-law failure-to-warn claims against generic manufacturers are preempted by federal law.
- Prior related action Moretti v. Wyeth, et al. involving similar claims was transferred/handled in Nevada; similarities inform preemption analysis.
- Court analyzes Mensing to determine if all claims are preempted and grants judgment on the pleadings, dismissing with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mensing governs and preempts all plaintiff claims. | Moretti-type claims beyond warning duties survive. | Mensing preempts all state-law claims against generics. | All claims barred by conflict preemption under Mensing. |
| Whether plaintiff's non-warnings-based theories are preempted. | Claims about misbranding, concealment, and data reporting fall outside Mensing. | Those theories essentially reiterate failure-to-warn issues. | Preempted under Mensing despite labeling distinctions. |
| Application and scope of Mensing after remand and related cases. | Mensing does not address non-warn claims; distinguishable. | Mensing forecloses non-warn claims as well. | Mensing controls; claims dismissed. |
| Whether withdrawal from the market could avoid liability. | Defendants could have withdrawn the drug while maintaining lawful labeling. | Withdrawal is not a remedy under state-law theories here. | Argument rejected; withdrawal discussion superseded by preemption ruling. |
Key Cases Cited
- PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) (Supreme Court held generic labeling cannot be changed; state-law failure-to-warn claims preempted)
- Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. 2009) (Eighth Circuit held not preempted; later reversed by Supreme Court)
- Mensing v. Wyeth, Inc., 658 F.3d 867 (8th Cir. 2011) (Vacated portions; remand leading to preemption ruling)
- Demahy v. Actavis Inc., 650 F.3d 1045 (5th Cir. 2011) (Fifth Circuit vacated district court ruling; preemption analysis affirmed)