Goodwin Procter litigators recently won an appeal on behalf of client Teva Pharmaceuticals in the products liability case Guarino v. Wyeth, LLC. In its opinion, the Eleventh Circuit affirmed the dismissal of Teva and rejected a theory of liability that plaintiffs’ counsel have pursued against generic drug companies since the PLIVA, Inc. v. Mensing decision. Mensing held that failure-to-warn claims are preempted by federal law, but Plaintiffs have argued that generic drug companies should still be held liable for not communicating their warnings more broadly. The Eleventh Circuit held the “communication” theory is “failure-to-warn” by another name and is preempted pursuant to the Supreme Court’s Mensing decision.
The Eleventh Circuit decision also relied heavily on a recent Fifth Circuit opinion in Morris v. PLIVA, Inc. as support for its holding. Morris was another recent Goodwin victory. The Morris decision also closed off several theories of liability plaintiffs’ counsel have pursued in the wake of Mensing, and has since been followed by a number of lower courts in dismissing claims against generic drug manufacturers.
The Goodwin team representing Teva in the Eleventh Circuit appeal was led by partner Rich Oetheimer and included partner Jonathan Price and associate Sarah Frederick.