5th Circ. Continues Trend Against 'Innovator Liability'

Law360, New York (June 16, 2014, 11:43 AM EDT) -- The Fifth Circuit recently affirmed the dismissal of various claims against manufacturers of the branded drug Reglan and its generic alternative. In Eckhardt v. Qualitest Pharmaceuticals Inc., a three-judge panel joined the growing majority of courts that have rejected theories of “innovator liability” asserted against manufacturers of branded drugs. Following the U.S. Supreme Court precedent in PLIVA v. Mensing, the panel also held that claims against generic drug manufacturers sounding in product liability and breach of warranty were preempted by federal law. The panel appeared, however, to indicate that a viable parallel claim may exist where a generic manufacturer failed to...

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