Gross v. Pfizer, Inc. et al

Filing 86

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 11/22/11. (cms, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

SHIRLEY GROSS,
Plaintiff,
v.

Civil Action No. 10-cv-00110-AW

PFIZER, INC., et. al,
Defendants.

MEMORANDUM OPINION
Pending 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. Loc. 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
form 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

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product liability, and misrepresentation. The Court dismissed Plaintiff’s 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. - - -, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011) (reh’g denied). In Mensing, the Supreme
Court considered a state law tort claim based on the alleged failure of a manufacturer to provide
adequate warning labels for generic metoclopramide. 131 S.Ct. at 2572. Under the Food and
Drug Administration (“FDA”) regulations, generic drug manufactures are required to make their
warning labels identical to those provided by the brand-name manufacturers. Id. at 2577.
Because FDA regulations do not allow generic manufacturers to independently change or
strengthen their product labeling, the Court found that it would be impossible for a generic
manufacturer to comply with both federal law and state tort law. Id. at 2578. As a result, the
Court held that the federal regulations preempt state law failure to warn claims, reversing
decisions by the Fifth and Eighth Circuit Courts of Appeals which had found otherwise. Id.
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 Plaintiff’s 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.

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See Doc. No. 83. PLIVA argues that, after Mensing, Plaintiff’s 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,
637 F.3d 503, 505-06 (4th Cir. 2011). Although the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff, the Court
should not accept unsupported legal allegations, Revene v. Charles Cnty. Comm’rs, 882 F.2d
870, 873 (4th Cir. 1989), “legal conclusion[s] couched as . . . factual allegation[s],” Papasan v.
Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
In resolving a motion to dismiss, the court 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, 129 S. Ct.
1937, 1949-50 (2009). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 1949. Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 1950.

III.

ANALYSIS

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The question before the Court is to what extent, if any, do Plaintiff’s 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 Mensing reasoned that
generic manufacturers are unable to strengthen or change their warning labels under federal law,
which requires that generic manufacturers make their warning labels identical to those provided
by the brand manufacturer of the drug. 131 S.Ct. at 2578. The Court therefore found that federal
law preempts state law tort claims attacking the sufficiency of the warning label on a generic
drug. Id.
Defendant PLIVA argues that Mensing disposes of Plaintiff’s state law tort claims, all of
which are based on inadequate warnings. Plaintiff’s 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

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While Plaintiff acknowledges that her claims relating to PLIVA’s inadequate labeling of
metoclopramide are preempted 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 Plaintiff’s product liability claims must be based
on a design defect, a manufacturing defect, or a failure to warn. See Simpson v. Standard
Container, 527 A.2d 1337, 1339 (1987). Plaintiff has not stated a claim for a manufacturing
defect, and this Court has found that “[d]esign defect claims are generally incompatible with
actions concerning prescription medications because these medications are thought to be
‘unavoidably unsafe.’” King v. Pfizer Pharm. Co., Inc., No. RWT 11cv00127, 2011 WL
3157305, at *2 (D. Md. Jul. 25, 2011) (citation omitted). Thus, by process of elimination
Plaintiff’s claims attacking PLIVA’s continued sales of metoclopramide must relate to PLIVA’s
alleged failure to warn consumers and physicians about the dangers of the drug.
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, 588 F.3d 603, 611 (8th Cir. 2009).

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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, 131 S.Ct.
2567 (2011), Nos. 09-993, 09-1039, 09-1501, 2011 WL 2874547, at *1. Moreover, the Sixth
Circuit considered the same argument in the plaintiff’s supplemental brief to the court after the
Mensing decision, and though it did not address it specifically, the court ruled that Mensing
barred Plaintiff’s state-law claims. See Smith v. Wyeth, Inc., 657 F.3d 420, 423 (6th Cir. 2011).
Accordingly, the Court finds unavailing Plaintiff’s 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
production 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
Plaintiff’s 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

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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.” 131 S.Ct. at 2578 (citing Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341 (2001)). The Court additionally found that “federal law did not permit [generic
drug] Manufacturers to issue additional warnings through Dear Doctor letters.” Id. at 2576
(citations and internal quotation marks omitted). Accordingly, Plaintiff’s claims based on
PLIVA’s alleged concealment of safety information are preempted under Mensing.

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 Plaintiff’s larger
failure to warn claims. Accordingly, Mensing preempts these allegations as they relate to
Plaintiff’s failure to warn claims.

D.

Plaintiff’s Request to Amend Complaint to Allege Additional Facts

Finally, Plaintiff requests the opportunity to amend her complaint to allege additional
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:

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“Therapy longer than 12 weeks has not been evaluated and cannot be recommended,” the
statement: “Therapy should 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 that 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
PLIVA’s post-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 PLIVA’s failure to
implement the label change.
In dismissing Plaintiff’s 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 (W.D. La. Nov. 15,
2011) (Doc. No. 85 Ex. G at 3-6) (dismissing failure to warn and design defect claims under
Mensing); In re: Accutane Prod. Liab., MDL 1626 (M.D Fla. Nov. 9, 2011) (Doc. No. 85 Ex. I)
(dismissing claims that, inter alia, defendant-pharmacy sold a product that was not fit for the
purposes intended and did not conduct a proper investigation, based on Mensing); Richardson v.

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Wyeth Inc., No. 10-0883, 2011 WL 5402184, at *2 (W.D. La. Oct. 20, 2011) (dismissing
plaintiff’s failure to warn claims under Mensing); Guarino v. Wyeth LLC, No. 8:10-cv-2885
(M.D. Fla. Nov. 7, 2011) (Doc. No. 85 Ex. K at 5) (dismissing claims that generic
manufacturer’s label was “inaccurate, misleading, materially incomplete, false and otherwise
inadequate” and that manufacturer failed to send Dear Doctor letters to prescribing physicians,
under Mensing); Morris v. Wyeth, Inc., No. 3:09-CV-854, 2011 WL 5024448, at *1 (M.D. Fla.
Oct. 20, 2011) (dismissing plaintiff’s claims against generic drug manufacturer for negligence,
strict liability, breach of warranties, misrepresentation, fraud, and negligence per se, under
Mensing).
Like the Court in Mensing, this Court “acknowledge[s] 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 brandname drug or a generic. If a consumer takes a brand-name drug, she can sue the
manufacturer for inadequate warnings under our opinion in Wyeth [v. Levine, 555
U.S. 555 (2009)]. If, however, she takes a generic drug, as occurs 75 percent of
the time, she now has no right to sue.

131 S.Ct. at 2592. Accordingly, federal drug regulations have foreclosed Plaintiff’s means of
seeking a judicial remedy in the instant action, and legislative action remains as the most
appropriate means of redress at this juncture.

IV.

CONCLUSION
For the foregoing reasons, the Court grants Defendant’s motion for judgment on the

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pleadings. An Order will follow.

November 22, 2011
Date

/s/
Alexander Williams, Jr.
United States District Judge

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