USCA Third Circuit Affirms Dismissal of Generic Drug Manufacturers in Fosamax Lawsuit

The Third Circuit recently affirmed a trial court’s granting of a motion for judgment on the pleadings filed by various generic drug manufacturers in a Fosamax suit.  Ninety-one plaintiffs from 28 different states filed suit against Merck and various generic drug manufacturers in Missouri state court, alleging that Fosamax and its generic equivalent (alendronate sodium), used for treating bone conditions such as osteoperosis and Paget’s disease, were defective in labeling, design, et cetera, due to the drug’s propensity to make bones more susceptible to fracture.  The case was removed to federal court and centralized with several other Fosamax-related lawsuits in an MDL in the U.S. District Court for the District of New Jersey.  As mentioned above, the generic drug defendants moved for judgment on the pleadings based on a federal preemption argument, and the trial court granted the motion.

In reaching its decision to affirm dismissal, the Third Circuit relied heavily on Mensing and Bartlett.  The Third Circuit was persuaded by the generic drug defendants’ argument that “they could only avoid liability by taking one of the options that Mensing and Bartlett say they cannot be forced to take: (1) changing alendronate sodium’s labeling, (2) changing the drug’s design, or (3) ceasing sales of the drug altogether.”  In the end, the Third Circuit held that the suit against the generic drug manufacturers was preempted under the doctrine of conflict preemption and affirmed the decision of the trial court.

For more on this opinion, please see this post over at the Drug and Device Law blog.