MEMORANDUM OPINION
Pеnding before the Court is Defendant Pliva USA, Inc. (“PLIVA”)’s motion for judgment on the pleadings pursuant to Rule 12 of the Federal Rules of Civil Procedure. See Doc. No. 83. The Court has reviewed the motions and all supporting documents and finds no hearing is necessary. See Md. Loe. R. 105.6 (D. Md. 2010). For the reasons articulated below, the Court grants Defendant’s motion.
I. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff filed this action as a result of injuries she suffered from ingesting the prescription drug metoclopramide. Plaintiff stipulates that the drugs she consumed are a generic fоrm of metoclopramide manufactured by Defendant PLIVA, and that she did not ingest any metoclopramide product manufactured by Pfizer, Wyeth or Schwarz. See Doc. No. 54. Plaintiff nonetheless filed suit against Defendants Pfizer, Wyeth, and Schwarz, who manufactured the brand-name form of metoclopramide, on theories of negligence, breach of warranty, strict product liability, and misrepresentation. The Court dismissed Plaintiffs claims against the brand-name manufacturers because Maryland law оnly allows drug defect claims to proceed against the manufacturer whose drug allegedly caused the injury; in this case, the generic manufacturer PLIVA. See Doc. No. 63.
On April 7, 2011, the Court stayed proceedings against PLIVA pending the Supreme Court’s decision in a collection of lawsuits addressing claims against generic
*657
manufacturers based on similar facts. On June 23, 2011, the Supreme Court decided
PLIVA Inc. v. Mensing,
— U.S. -,
After the Mensing decision, Plaintiff filed a motion in the instant action to alter or amend the Court’s entry of final judgment in favor of brand-name manufacturer Defendants as well as a motion to lift stay. See Doc. Nos. 74, 76. The Court denied Plaintiffs motion to reconsider its judgment in favor of the brand-name manufacturers but granted her motion to lift stay for the limited purpose of allowing the parties to brief the Court on the impact of the Mensing decision. See Doc. No. 80. Accordingly, PLIVA filed the present motion for judgment on the pleadings. See Doc. No. 83. PLIVA argues that, after Mensing, Plaintiffs state-law claims against PLIVA are preempted. For the reasons discussed below, the Court agrees.
II. STANDARD OF REVIEW
A Rule 12 motion should be granted when, viewing the allegations in the complaint as true, including all inferences which may reasonably be drawn from the facts alleged, the complaint fails to state a claim upon which relief may be granted.
See Brockington v. Boykins,
In resolving a motion to dismiss, the сourt should proceed in two steps. First, the court should determine which allegations in the complaint are factual allegations entitled to deference, and which are mere legal conclusions that receive no deference.
See Ashcroft v. Iqbal,
III. ANALYSIS
The question before the Court is to what extent, if any, do Plaintiffs claims survive the Supreme Court’s preemption ruling in
Mensing. Mensing
precludes consumer suits against generic manufacturers based on failure to warn claims. The Court in
*658
Mensing
reasoned that generic manufacturers are unable to strengthen or change their warning labels under federal law, which requires that generic manufacturers makе their warning labels identical to those provided by the brand manufacturer of the drug.
Defendant PLIVA argues that Mensing disposes of Plaintiffs state law tort claims, all of which are based on inadequate warnings. Plaintiffs claims attack the sufficiency of the warnings provided by PLIVA under state law. According to PLIVA, these are precisely the types of claims that Mensing held were preempted by federal law. However, Plaintiff contends that Mensing only preempted failure to warn claims involving the inadequacy of the warning PLIVA provided on its metoclopramide label, whereas Plaintiff has additionally alleged that: (1) PLIVA was negligent in selling its drug with a label that contained false information and lacked adequate instructions for use; (2) for failing to test and inspect its products; (3) for selling a product that was not fit for the purpose for which it was sold; ' (4) for concealing important safety information regarding its drugs; and (5) for placing an unreasonably dangerous product into the stream of commerce. While acknowledging “the unfortunate hand that federal drug regulation has dealt” Plaintiff as a consumer of a generic drug, id. at 2581, the Court finds that Mensing disposes of all these claims. The Court will proceed to address each of these allegations below.
A. Negligence for Continuing to Sell Metoclopramide
While Plaintiff acknowledges that her claims relating to PLIVA’s inadequate labeling of metoclopramide are prеempted after Mensing, she contends that her claims attacking PLIVA’s continued sale of metoclopramide remain. Specifically, Plaintiff argues she has surviving claims that PLIVA was negligent for continuing to sell metoclopramide with an inadequate label, for continuing to sell a product that was not fit for the purpose for which it was sold, and for continuing to place an unreasonably dangerous product into the stream of commerce.
As an initial matter, under Maryland law Plaintiffs рroduct liability claims must be based on a design defect, a manufacturing defect, or a failure to warn.
See Simpson v. Standard Container,
The very arguments Plaintiff contends survive
Mensing
were adopted by the Eighth Circuit in
Mensing v. Wyeth, Inc.,
and later rejected by the Supreme Court in
Mensing.
Finding in favor of the Plaintiff-consumer in
Wyeth,
the Eighth Circuit reasoned that the “generic defendants were not compelled to market metoclopramide. If they realized their label was insufficient but did not believe they could even propose a label change, they could have simply stopped selling the product. Instead, they are alleged to have placed a drug with inadequate labeling on the market and profited from its sales.”
Wyeth,
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The Supreme Court rejected this reasoning on appeal and denied a rehearing despite the contentions of Respondents that the Supreme Court had “overlook[ed] the fact that the Petitioners could have ‘independently’ complied with both state and federal law simply by suspending sales of generic metoclopramide with warnings that they knew or should have known where inadequate.” Respondents’ Petition for Rehearing at 1,
PLIVA, Inc. v. Mensing,
— U.S. -,
Accordingly, the Court finds unavailing Plaintiffs argument that PLIVA could have simply stopped manufacturing metoclopramide and thus avoided violating either federal or state law. The Court is aware of no state law duty that would compel generic manufacturers to stop produсtion of a drug that under federal law they have the authority to produce. Nor could such a state law duty exist, as it would directly conflict with the federal statutory scheme in which Congress vested sole authority with the FDA to determine whether a drug may be marketed in interstate commerce. See 21 U.S.C. § 301 et seq. For all these reasons, the Court finds that Plaintiffs negligence claims based on PLIVA’s continued sale of metoclopramide fail under Mensing.
B. Negligence for Concealing Important Safety Information
Plaintiff contends that its negligence claim based on PLIVA’s alleged concealment of important safety information about metoclopramide survives
Mensing.
The Court disagrees. To the extent Plaintiff claims that PLIVA could have revealed safety information by adding to or changing the metoclopramide label, her claims are clearly preempted by
Mensing.
To the extent Plaintiff claims that PLIVA should have revealed information to the FDA regarding the dangers of metoclopramide, her claims are also preempted. The Court in
Mensing
addressed arguments that generic pharmaceutical companies had a duty to ask the FDA to add to or strengthen the labeling for metoclopramide. The Court found that “[t]he federal duty to ask the FDA for help in strengthening the corresponding brand-name label, assuming such a duty exists, does not change this [preemption] analysis.”
C. Negligence for Failing to Test and Inspect PLIVA’s Products
Plaintiff contends that her allegation that PLIVA failed to test and inspect its products survives Mensing. The Court fails to see how these allegations are but a piece of Plaintiffs larger failure to warn claims. Accordingly, Mensing preempts these allegations as they relate to Plaintiffs failure to warn claims.
D. Plaintiff’s Request to Amend Complaint to Allege Additionаl Facts
Finally, Plaintiff requests the opportunity to amend her complaint to allege addi *660 tional facts relating to PLIVA’s failure to include important warnings added to the labeling for metoclopramide in 2004. Specifically, Plaintiff contends that PLIVA’s metoclopramide label differed from the brand-name label, which in July 2004 added to the already-existing language: “Therapy longer than 12 weeks has not been evaluated and cannot be recommended,” the statement: “Therapy shоuld not exceed 12 weeks in duration.”
However, Plaintiff does not claim that the alleged failure of PLIVA to update its label gives rise to any cause of action under Maryland law; nor is the Court aware of any such cause of action. Additionally, Plaintiff has consistently claimed that all warnings issued before 2009 relating to metoclopramide, including the brand-name warnings stating that “Therapy should not exceed 12 weeks in duration”, were inadequate. See Compl.
Moreover, the weight of authority suggests thаt such claims are unavailing after Mensing. Identical arguments were made by plaintiffs in supplemental briefings to the Sixth and Eighth Circuits, and both courts nevertheless dismissed the plaintiffs’ claims based on preemption under Mensing. See Doc. No. 85 Ex. 1 at 5; Ex. 2 at 4. The issue was also brought to the Supreme Court’s attention by PLIVA’s counsel before oral arguments were held in Mensing. See Doc. No. 85 Ex. 5 (letter from PLIVA’s counsel informing the Supreme Court that “at least some of PLI-VA’s posi>-2004 labels do not include th[e] change.”). Accordingly, the Court declines to allow Plaintiff to amend her complaint to allege additional facts relating to PLI-VA’s failure to implement the label change.
In dismissing Plaintiffs state-law tort claims against PLIVA, the Court joins a growing number of courts which, in the wake of
Mensing,
have dismissed similar lawsuits against generic drug manufacturers.
See, e.g., Stevens v. Pliva, Inc.,
Civ. No. 6:10-0886,
Like the Court in Mensing, this Court “acknowledge^] the unfortunate hand that federal drug regulation has dealt” Plaintiff as a consumer of generic metoclopramide. As Justice Sotomayor noted in her dissent,
[A] drug consumer’s right to compensation for inadequate warnings now turns on the happenstance of whether her pharmacist filled her prescription with a brand-name drug or a generic. If a consumer takes a brand-name drug, she can sue the manufacturer for inadequatе warnings under our opinion in Wyeth [v. *661 Levine,555 U.S. 555 ,129 S.Ct. 1187 ,173 L.Ed.2d 51 (2009) ]. If, however, she takes a generic drug, as occurs 75 percent of the time, she now has ho right to sue.
IV. CONCLUSION
For the foregoing reasons, the Court grants Defendant’s motion for judgment on the pleadings. An Order will follow.
MEMORANDUM OPINION
Pending before the Court is Plaintiff Shirley Gross’s mоtion to alter or amend the Court’s November 22, 2011 Order granting Defendant PLIVA’s motion for judgment on the pleadings. See Doc. No. 88. The Court has reviewed the motions and all supporting documents and finds no hearing is necessary. See Md. Loe. R. 105.6 (D.Md.2010). For the reasons articulated below, the Court DENIES Plaintiffs Motion.
I. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff filed this action as a result of injuries she suffered from ingesting the prescription drug metoclopramide. Plaintiff stipulates that the drugs she consumed are a generic form of metoclopramide manufaсtured by Defendant PLIVA, and that she did not ingest any metoclopramide product manufactured by Pfizer, Wyeth or Schwarz. See Doc. No. 54. Plaintiff nonetheless filed suit against Defendants Pfizer, Wyeth, and Schwarz, who manufactured the brand-name form of metoclopramide, on theories of negligence, breach of warranty, strict product liability, and misrepresentation. The Court dismissed Plaintiffs claims against the brand-name manufacturers because Maryland law only allows drug defect claims to proceed against the manufacturer whose drug allegedly caused the injury; in this case, the generic manufacturer PLIVA. See Doc. No. 63.
On April 7, 2011, the Court stayed proceedings against PLIVA pending the Supreme Court’s decision in a collection of lawsuits addressing claims against generic manufacturers based on similar facts. On June 23, 2011, the Supreme Court decided
PLIVA, Inc. v. Mensing,
564 U.S. -,
After the Mensing decision, Plaintiff filed a motion in the instant action to alter or amend the Court’s entry of final judgment in favor of brand-name manufacturer Defendants as well as a motion to lift stay. See Doc. Nos. 74, 76. The Court denied Plaintiffs motion to reconsider its judgment in favor of the brand-name manufac *662 turers but granted her motion to lift stay for the limited purpose of allowing the parties to brief the Court on the impact of the Mensing decision. See Doc. No. 80. Subsequently, PLIVA filed a motion for judgment on the pleadings, contending that Plaintiffs state-law claims against PLIVA are preempted post-Mensing. The Court agreed and, on November 22, 2011, granted PLIVA’s motion. On December 20, 2011, Plaintiff filed the present motion to alter or amend the Court’s November 22, 2011 judgment, contending that reconsideration is necessary to correct errors of law and prevent manifest injustice. See Doc. No. 88.
II. STANDARD OF REVIEW
Under Rule 59(e), a Court can amend an earlier judgment: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.”
Hutchinson v. Staton,
III. ANALYSIS
Plaintiff seeks reconsideration of the Court’s order granting PLIVA’s motion for judgment on the pleadings, contending that she retains claims against PLIVA under theories of strict liability,
negligence,
breach of warranties, fraud, and misrepresentation
post-Mensing
and that new cases offer additional support for the viability of her claims. Plaintiffs arguments in support of her motion overwhelmingly constitute a rehash of prior arguments already considered and rejected by this Court. Additionally, Plaintiffs contention that “the vast majority of courts” are not dismissing similar claims across the country is belied by the case law. Most notably, the Sixth Circuit earlier this month denied a petition for a rehearing and rehearing en banc by plaintiffs who have made and continuе to make substantially the same arguments as does Plaintiff in the instant action.
See Smith v. Wyeth, Inc.,
At the time of the Court’s November 22, 2011 judgment, it noted the growing number of district courts dismissing similar lawsuits against generic drug manufacturers in the wake of
Mensing. See
Doc. No. 86 at 8-9 (citing district court cases). In the intervening two months, the number of courts dismissing similar suits under
Mensing
has only grown.
See, e.g., Del Valle v. PLIVA, Inc.,
Civ. No. B: 11-113,
However, Plaintiff is correct in identifying a split in authority as to the viability of Plaintiff’s claims based on PLIVA’s failure to include a warning on its metoclopramide label that the brand-name manufacturer had added to its label in 2004. Pre-July 2004, the brand-name label and generic label both stated: “Therapy longer than 12 weeks has not been evaluated and cannot be recommended.” In July 2004, the brand-name label added to that already-existing language the statement: “Therapy should not exceed 12 weeks in duration.” PLIVA did not add this language to the label of the genеric metoclopramide consumed by Plaintiff. Plaintiff argues that its claim based on the 2004 label change is not preempted because it does not require the generic manufacturer to send “substantial new warning information” or “additional warnings” but only requires that the generic manufacturer inform physicians and consumers of warnings consistent with and not contrary to information on the brand-name label.
A few courts have allowed similar claims based on the 2004 label change to proceed, finding that they are not preempted under
Mensing. See, e.g., Fisher v. Pelstring,
Civ. No. 4:09-cv-00252-TLW,
The cases cited by Plaintiff have not been issued since the Court’s November 22, 2011 opinion; nor do they change the Court’s analysis of Plaintiffs claim. The Court did not dismiss Plaintiffs claim relating to the 2004 label change on the grounds of preemption, although there are strong arguments that such a claim is preempted, and the Sixth and Eighth Circuits have rejected nearly identical arguments by plaintiffs after
Mensing. See, e.g., Smith v. Wyeth, Inc.,
Rather, the Court dismissed this claim in its November 22, 2011 opinion because Plaintiffs allegations relating to the 2004 label change failed to state a claim upon which relief can be granted.
See
Doc. No. 86 at 8 (“However, Plaintiff does not claim that thе alleged failure of PLIVA to update its label gives rise to any cause of action under Maryland law....”). Within her Complaint and subsequent pleadings, Plaintiff has consistently alleged that all metoclopramide labels, including the brand-name label with the added language “[tjherapy should not exceed 12
*664
weeks in duration”, were inadequate until an FDA labeling change in 2009. Plaintiff now contends that her injuries could have been avoided if PLIVA had given physicians and consumers this inadequate warning. As the court noted in
Del Valle v. PLIVA
when faced with the same claim, “[i]n essence, [plaintiff] is asking the Court to hold PLIVA and Teva responsible for not updating their labeling in 2004 to a label that [plaintiff] believes, and has pled, would still be inadequate.” Civ. No. B: 11-113,
Although the Court saw fit to clarify its rationale for rejecting Plaintiffs claim relating to the 2004 label change, the Court reiterates that Plaintiff has shown no error of law or change in controlling law that would give the Court pause to reconsider its judgment; indeed, portions of Plaintiffs most recent motion are taken nearly verbatim from her response to PLIVA’s motion for judgment on the pleadings. The standard for Rule 59(e) motions is high. To justify reconsideration on the basis of manifest error, the prior decision cannot be “ ‘just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’ ”
TFWS, Inc. v. Franchot,
IV. CONCLUSION
For the foregoing reasons, Plaintiffs motion for reconsideration under Federal Rule 59(e) is DENIED. A separate Order will follow.