Sandoz Exits MDL After E. D. New York Finds Product Liability Claims Preempted

January 30, 2012

The U.S. District Court for the Eastern District of New York granted summary judgment in favor of firm client Sandoz Inc., along with APP Pharmaceuticals, Inc., Ben Venue Laboratories, Inc., Teva Parenteral Medicines, Inc., and Hospira, Inc. with respect to all remaining plaintiffs in the generic pamidronate multidistrict litigation.  In re Pamidronate Products Liab. Litig., No.1:09-MD-2120 (KAM) (E.D.N.Y. Jan. 30, 2012).  Judge Kiyo Matsumoto found that all of the plaintiffs’ claims were preempted by federal law under the Supreme Court’s recent decision in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011).

The pamidronate MDL was formed in December 2009 to address claims that the drug, the generic form of the bisphosphonate cancer treatment Aredia, causes osteonecrosis of the jaw.  The MDL included claims by as many as 134 plaintiffs, who had sued some or all of the four manufacturers of generic pamidronate.  The defendants had moved to dismiss the claims of the majority of plaintiffs based on their failure to identify which generic pamidronate product they allegedly had taken.  Following the Supreme Court’s ruling in Mensing, the court stayed further briefing and consideration of the pending product identification motions to consider the impact of generic preemption.  A number of plaintiffs agreed to voluntarily dismiss their claims with prejudice, and the defendants moved for summary judgment with respect to the remainder.  In her decision, Judge Matsumoto found that the plaintiffs’ failure-to-warn claims were squarely preempted under Mensing and that this ruling extended to the plaintiffs’ negligence and breach of express warranty claims too, which are warnings-based claims.  Judge Matsumoto further found the plaintiffs’ design defect claims preempted because the Supreme Court found that a generic drug’s design, like its label, is subject to a “sameness” requirement with respect to the reference brand drug.  Consequently, the court granted summary judgment with regard to all remaining claims.