Sixth Circuit Rejects Brand-Liability Theory Post-Pliva v. Mensing

Originally published on December 8, 2011

Keywords: prescription drug, Reglan, product liability act, breach of warranty

On September 22, 2011, the US Court of Appeals for the Sixth Circuit ruled in Smith v. Wyeth, Inc., that former brand manufacturers of Reglan® (a prescription drug used to treat certain gastric disorders) could not be held liable for injuries caused by their competitors' generic versions of the drug. On November 22, 2011, the court denied plaintiffs' petition for rehearing en banc.

In doing so, the Sixth Circuit became the first appellate court to address, and reject, the argument that the US Supreme Court's recent preemption decision in Pliva v. Mensing (2011) either altered state law claims against brand manufacturers whose products were not ingested or undermined the prior weight of authority that a brand manufacturer owes no duty to a consumer of generic products.