November 13, 2012 Articles

Design Defect Claims in the Wake of PLIVA, Inc. v. Mensing

Christopher Windover

In PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the U.S. Supreme Court held that federal law and regulations preempted state law failure-to-warn claims against generic drug manufacturers. Since the Mensing opinion was issued in June 2011, courts and litigants have grappled with the scope of the Court’s decision. An important issue that remains unresolved in the lower courts is the extent to which other state law tort claims—aside from failure-to-warn claims—fall within Mensing’s preemptive reach. State law design defect claims fall within this gray area, and they have received conflicting treatment from lower courts.

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