Boulder Business Law Advisor

The Supreme Court has agreed to take up the First Circuit's decision in Bartlett v. Mutual Pharmaceutical, Inc. which we have previously written about here and here and here.   Despite the Supreme Court's decision in Pliva v. Mensing whereby the Court held that federal regulations preventing generic drug manufacturers from independently changing their drug's labeling pre-empted state law failure-to-warn claims for injuries caused by the generic drugs, the First Circuit in Bartlett held that the generic drug manufacturer could still be liable under state law design defect claims because they could have refused to manufacture the drug in the first place:... More

We discussed the First Circuit’s opinion in Bartlett v. Mutual Pharmaceutical in two previous posts (here and here). In a nutshell, in Bartlett, the First Circuit refused to find preemption under the Supreme Court’s opinion in Pliva v. Mensing for the plaintiff’s design defect claim against the generic drug manufacturer because the generic manufacturer could “…avoid defective warning lawsuits as well as design defect lawsuits by not making the drug...” in the first place. Confronted with a similar issue, the District Court for the Eastern District of Kentucky in In Re Darvocet, Darvon, and Propoxyphene Products Liability Litigation MDL reviewed the Bartlett... More

We previously wrote about the First Circuit's decision in Bartlett v. Mutual Phamaceutical Co., Inc. which refused preemption for a design defect product liability claim against a generic drug manufacturer.  In our previous post on Bartlett, we discussed the apparent frustration on the part of the First Circuit with the Supreme Court's decision in Pliva v. Mensing.  For this reason, the First Circuit was unwilling to leave the injured plaintiff in Bartlett with no avenue of remedy for her injuries from a generic drug and decided against preemption for her design defect claims. Taking a look at the Bartlett opinion again, the First... More

A number of our previous blog posts (here, here, and here) discussed the Supreme Court’s decision in Pliva v. Mensing, which held that state failure-to-warn claims against generic drug manufacturers were preempted by the Federal Food, Drug, and Cosmetic Act, particularly the 1984 Hatch-Waxman Amendments.  Our most recent post on the topic was Metz v. Wyeth in which the Middle District of Florida applied Mensing and found preemption for a number of product liability claims for recovery but did not find preemption for claims of breach of implied warranties.   Bartlett v. Mutual Pharmaceutical Co., Inc. is another recent application of Mensing--this time from the First Circuit... More

While opening a bottle of wine recently, I struggled with a cork that was just plain stuck.  After some serious effort with the Pulltap, Ah-So and just short of using my 9 iron, I got the thing open.  But not without the thought of what might have been had the bottle burst and glass went flying.  Who would be to blame? Not me of course...but who? The winery? The bottle maker?  The cork supplier?  Turns out, in all likelihood, it would have been my fault.   In Rabon-Willimack v. Robert Mondavi Corp. a bartender injured her hand after breaking a bottle of Robert Mondavi... More