Phelps v. Wyeth, Inc.
2012 U.S. Dist. LEXIS 57967
D. Or.2012Background
- Mrs. Phelps ingested generic metoclopramide (Pliva/Northstar) from 2002 to at least 2009 and alleges tardive dyskinesia.
- Plaintiffs sued name-brand makers Wyeth, Schwarz, and Alaven; in 2010 the court granted them summary judgment and dismissed those claims.
- After Mensing (2011), the parties filed supplemental motions; amended complaint added a failure-to-update-label claim against Pliva.
- Judge Coffin recommended denial of relief from judgment for plaintiffs and granted Northstar summary judgment and Pliva's dismissal in part.
- The district judge ultimately adopted the recommendations: name-brand claims dismissed; generic claims preempted; limited relief for the label-update claim denied without prejudice; sanctions denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are name-brand claims precluded post Mensing? | Mensing overturned Foster; name-brand liable. | Foster controls; no federal issue; preemption not to rely on. | Name-brand claims dismissed; preemption not established against them. |
| Are generic claims preempted by Mensing? | Mensing does not preempt all warnings-based claims; some theories remain. | Mensing preempts all warnings-based state-law claims against generics. | All warnings-based claims against generic manufacturers are preempted. |
| Will the failure-to-update-label claim be considered now? | Claims should proceed; update-label duty ongoing. | Issue not properly before court pending full briefing. | Not considered at this stage; merits deferred. |
| Should sanctions against Pliva be granted? | Sanctions warranted for discovery failures. | No sanctionable misconduct; no prejudice shown. | Sanctions denied. |
Key Cases Cited
- PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (U.S. 2011) (federal preemption of generic-drug warnings)
- Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994) (name-brand liability for injuries from competitor's product)
- Wyeth v. Levine, 555 U.S. 555 (U.S. 2009) (inadequate-label claims; preemption analysis guidance)
- McEwen v. Ortho Pharma. Corp., 270 Or. 375, 528 P.2d 522 (Or. 1974) (owner liability requires injury from that manufacturer’s product)
- Marinelli v. Ford Motor Co., 72 Or.App. 268, 696 P.2d 1 (Or.App. 1985) (ORS 30.900 embraces all product-defect theories, including warranty)