The “failure-to-withdraw” theory of liability has since been rejected by numerous other courts. See e.g. Jacobsen v. Wyeth, LLC, 2012 WL 3575293, at *9–11 (E.D.La. Aug. 20, 2012); Cooper v. Wyeth, 2012 WL 733846, at *6 (M.D.La. Mar. 6, 2012); In re Darvocet, Darvon and Propoxyphene Prod. Liability Litigation, 2012 WL 718618, at *3 (E.D.Ky. Mar. 5, 2012); Moretti v. Mutual Pharm. Co., 852 F.Supp.2d 1114, 1118 (D.Minn.2012); Gross v. Pfizer, Inc., 825 F.Supp.2d 654, 658–59 (D.Md.2011); but see Bartlett v. Mutual Pharm. Co., Inc., 678 F.3d 30, 37–38 (1st Cir.2012) (design defect claim against generic drug manufacturer was not preempted, despite duty of sameness regarding composition, because “it certainly can choose not to make the drug at all”), cert. granted,––– U.S. ––––, 133 S.Ct. 694, 184 L.Ed.2d 496 (2012). The Court finds, consistent with the great weight of authority, that any claims related to the Generic Defendants' failure to withdraw metoclopramide from the market are preempted.
Id. Similarly, in Moretti v. Mutual Pharmaceutical Co. , 852 F Supp. 2d 1114, 1114-15 (D. Minn. 2012), aff'd , 518 F. App'x 486 (8th Cir. 2013), a plaintiff brought claims against generic drug manufacturers for negligence, misrepresentation, fraud, infliction of emotional distress, and violation of state consumer protection statutes. She argued that her claims were not pre-empted because they were based on the generic drug manufacturers providing false information about a generic drug, concealing safety information, and failing to conduct and report the results of post-marketing surveillance.
See, e.g. , Gardley-Starks v. Pfizer, Inc. , 917 F. Supp. 2d 597, 607 (N.D. Miss. 2013) (explaining, where a plaintiff asserted that Mensing did not apply to a claim that a manufacturer had distributed a misbranded drug, that "no matter how Plaintiff styles her theories of recovery, her claims ultimately relate to the Generic Defendants’ alleged failure to warn about the side effect of metoclopramide"); Moretti v. PLIVA, Inc. , No. 2:08-CV-00396-JCM, 2012 WL 628502, at *2, *5 (D. Nev. Feb. 27, 2012) (rejecting a plaintiff's argument that Mensing did not foreclose liability based on a generic drug manufacturer continuing to distribute a misbranded drug), aff'd sub nom.Moretti v. Wyeth, Inc. , 579 F. App'x 563 (9th Cir. 2014) ; Moretti v. Mutual Pharm. Co. , 852 F Supp. 2d 1114, 1118 (D. Minn. 2012) (stating that the court was "not persuaded" by a plaintiff's attempt to differentiate her misbranding claim from the types of claims addressed in Mensing and that, "[d]espite the different ‘labels’ given these claims, the essence of these claims is that ... Defendants failed to warn of material safety information concerning metoclopramide"), aff'd , 518 F. App'x 486 (8th Cir. 2013) ; Metz v. Wyeth, LLC , No. 8:10-CV-2658-T-27AEP, 2011 WL 5024448, at *4 (M.D. Fla. Oct. 20, 2011) (dismissing plaintiffs’ claim that a generic drug was misbranded because the claim fell "directly within the scope of Mensing because it [was] based on Actavis’ purported failure to provide an adequate label and package insert for metoclopramide"). The Plaintiffs have not cited any decision where their misbranding theory has been accepted, and the Court has located none.
Following the Supreme Court's opinion in Mensing , federal courts presented with claims that generic drug manufacturers had distributed misbranded drugs rejected such claims as pre-empted under Mensing . See, e.g. , Gardley-Starks v. Pfizer, Inc. , 917 F. Supp. 2d 597, 607 (N.D. Miss. 2013) (explaining, where a plaintiff asserted that Mensing did not apply to a claim that a manufacturer had distributed a misbranded drug, that "no matter how Plaintiff styles her theories of recovery, her claims ultimately relate to the Generic Defendants’ alleged failure to warn about the side effect of metoclopramide"); Moretti v. PLIVA, Inc. , No. 2:08-CV-00396-JCM, 2012 WL 628502, at *2, 5 (D. Nev. Feb. 27, 2012) (rejecting a plaintiff's argument that Mensing did not foreclose liability based on a generic drug manufacturer continuing to distribute a misbranded drug), aff'd sub nom.Moretti v. Wyeth, Inc. , 579 F. App'x 563 (9th Cir. 2014) ; Moretti v. Mutual Pharm. Co. , 852 F Supp. 2d 1114, 1118 (D. Minn. 2012) (stating that the court was "not persuaded" by a plaintiff's attempt to differentiate her misbranding claim from the types of claims addressed in Mensing and that, "[d]espite the different ‘labels’ given these claims, the essence of these claims is that ... Defendants failed to warn of material safety information concerning metoclopramide"), aff'd , 518 F. App'x 486 (8th Cir. 2013) ; Metz v. Wyeth, LLC , No. 8:10-CV-2658-T-27AEP, 2011 WL 5024448, at *4 (M.D. Fla. Oct. 20, 2011) (dismissing plaintiffs’ claim that a generic drug was misbranded because the claim fell "directly within the scope of Mensing because it [was] based on Actavis’ purported failure to provide an adequate label and package insert for metoclopramide"). d. Misbranding and Mutual Pharmaceutical Co. v. Bartlett
Additional cited district court decisions do not address the issue. See, e.g., Phelps v. Wyeth, Inc., No. 6:09-cv-06168-TC, _ F. Supp. 2d _, 2012 WL 1499343, at *10 (D. Or. Apr. 24, 2012) (declining to address whether failure to update claims against a generic manufacturer are preempted); Bowman v. Wyeth, LLC, No. 10-1946 (JNE/SER), 2012 WL 684116, at *7 (D. Minn. Mar. 2, 2012) (same); Moretti v. Mut. Pharm. Co., No. 10-896, _ F. Supp. 2d _, 2012 WL 465867, at *5 (D. Minn. Feb. 13, 2012) (finding all asserted claims conflict preempted; no discussion of failure to provide FDA-approved warnings); Morris v. Wyeth, Inc., No. 09-0854, 2012 WL 601455, at *4 (W.D. La. Feb. 23, 2012) ("Even if PLIVA's noncompliance with the duty of sameness escapes the preemption identified in Mensing, . . . amendment in this case would be futile because any claim based on the 2004 label would be inconsistent with Plaintiffs' assertion that all pre-2009 labeling failed to adequately warn."); In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., No. 08-008 (GEB-LHG), 2011 WL 5903623, at *8 (D.N.J. Nov. 21, 2011) (refusing to consider a failure-to-communicate theory because it had not been pled in the complaint).
Like Mensing, "at the core of all of Plaintiff's claims is the basic assertion that [Teva] failed to adequately warn about the association between long-term ingestion of [metoclopramide] and movement disorders." Mensing v. Wyeth, Inc., 562 F. Supp. 2d at 1058; see also Moretti v. Mut. Pharm. Co., Civil No. 10-896, 2012 WL 465867, at *4 (D. Minn. Feb. 13, 2012) ("Despite the different 'labels' given these claims, the essence of these claims is that important safety information as to metoclopramide was not disseminated, or made clear, to the public or the medical community. In other words, Defendants failed to warn of material safety information concerning metoclopramide.").