Plaintiff argued that the US Supreme Court’s decision in PLIVA v. Mensing, 131 S.Ct. 2567 (2011) should render the brand manufacturer liable for the warning label and other properties utilized by generic manufacturers. According to the plaintiff, Mensing undermined the logic of the U.S. Fourth Circuit’s decision in Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994) (relied upon by Louisiana courts, see., e.g., Stanley v. Wyeth, 991 So.2d 31, 34 (La. App. 1st Cir. 2008)), that a party cannot be liable for damages resulting from use or consumption of a product it did not manufacture. The U.S. Fifth Circuit rejected that argument entirely, noting that Foster was not predicated on the ability of the plaintiff to sue the generic manufacturer. “Instead, the court’s holding was based on its interpretation of Maryland law and the conclusion that a name-brand manufacturer has no duty of care to consumers that are not using the manufacturer’s product. This Court is bound by Louisiana law and we cannot create a new remedy.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177 (5th Cir. 2012).
Leave a Reply