PER CURIAM:
These appeals arise out of claims against both generic and brand-name manufacturers for injuries related to use of the drug metoclopramide (brandname Reglan). Because the pertinent facts and legal issues of these cases are nearly identical, we consolidate them for disposition.
In case No. 12-60861, Lashley v. Pfizer, et al., Appellant Walter Lashley ("Lashley") appeals the Southern District of Mississippi's grant of Watson Pharmaceuticals, Inc. and Watson Laboratories, Inc.'s ("Watson generic defendants") motion to dismiss, as well as its grant of summary judgment in favor of defendants Pfizer, Inc.; Wyeth, Inc.; and Schwarz Pharma, Inc. ("Pfizer brand defendants"). Lashley's claims against the Watson generic defendants were based upon their sale and distribution of metoclopramide to Lashley. His claims against the Pfizer brand defendants were based on allegedly false and misleading representations they made to the medical community.
In case No. 12-41148, Del Valle v. Teva Pharm., et al., Appellant Maria Del Valle ("Del Valle") similarly appeals the Southern District of Texas's grant of Qualitest Pharmaceuticals, Inc.; Teva Pharmaceuticals USA, Inc.; PLIVA, Inc.; and Vintage Pharmaceuticals, LLC's ("Teva generic defendants")
For the reasons stated herein, we AFFIRM the district courts' rulings in both cases.
Lashley took generic metoclopramide from 2002 until late 2006. In 2004, brand defendant Schwarz submitted a label update for Reglan adding that "[t]herapy with Reglan tablets should not exceed 12 weeks in duration," which the FDA approved. Not all generic manufacturers modified their labels to conform with the newly approved warnings at that time. Lashley developed the movement disorders tardive dyskinesia and akathisia as a result of taking the drug and brought suit in October 2009. As noted above, he sued the Watson generic defendants based on
Del Valle took generic metoclopramide from 2004 to February 2011. Like Lashley, she developed tardive dyskinesia and akathisia as a result of taking the drug. She brought suit in June of 2011. She sued the Teva generic defendants based on their manufacture and distribution of metoclopramide, under theories of negligence, gross negligence, misrepresentation, fraud, suppression of evidence, strict liability, breach of warranty as to merchantability, breach of warranty as to fitness for a particular purpose, and deceptive trade practices. She brought the same claims against the Schwarz brand defendants for their role in the promotion and manufacture of the drug, with the exception of deceptive trade practices.
The courts below in both cases dismissed the claims against the generic manufacturers, finding them to be either preempted under PLIVA, Inc. v. Mensing, ___ U.S. ___, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011) (holding failure-to-warn claims against generic manufacturers of Reglan preempted) or deficient for failure to state a claim on which relief could be granted. See Fed.R.Civ.P. 12. All the claims against the generic manufacturers were treated as variations of a failure-to-warn claim. See Morris v. PLIVA, Inc., 713 F.3d 774, 778 & n. 6 (5th Cir.2013) (per curiam) ("Appellants next argue that the generic defendants failed to test and inspect the product according to federal law ... [A]ny `useful' reporting — at least from the standpoint of those injured — would ostensibly consist of some sort of warning.").
Appellants argue that the lower courts erred in dismissing their claims against generic manufacturers as preempted under Mensing.
In order to place their claims outside the ambit of Mensing, both Lashley and Del Valle argue for a very narrow interpretation of that case. Their arguments are unavailing. The Court in Mensing held that federal law demands "generic drug labels be the same at all times as the corresponding brand-name labels." 131 S.Ct. at 2578. This duty of sameness is overlaid with the agency's pronouncement that "Dear Doctor" letters (or other forms of warning) from a generic manufacturer constitute labeling. Because of this, potential state law duties requiring generic manufacturers to act unilaterally concerning any consumer warnings are preempted. Id. at 2580-81. At their core, all Lashley and Del Valle's claims against the generic manufacturers turn on the adequacy of labeling and related information, and can thus be construed as failure-to-warn claims. As such, we find them to be preempted under Mensing.
Appellants argue that not all failure-to-warn claims run afoul of Mensing, such as those alleging that generic manufacturers could have taken steps that would not require them to differ their labeling from that of the reference listed drug ("RLD") for metoclopramide, Reglan.
713 F.3d at 777 (second alteration in original).
Thus, following clear precedent, we affirm the dismissal of these failure-to-warn claims here as well.
Like in Morris, Appellants also maintain that certain generic manufacturers should be liable for not conforming to the 2004 label change. Assuming arguendo that Lashley or Del Valle adequately pleaded this theory,
Appellants further argue that their non-failure-to-warn claims, such as those based on strict liability and breach of warranty theories, are not preempted under Mensing. They contend that generic manufacturers should be liable for any damages caused by the production and/or distribution of an unsafe product; recognizing that generic manufacturers could not have made changes in labeling to add information, Appellants nevertheless argue that generic manufacturers should be held liable for damages caused by the insufficient information they were allowed to disseminate. However, we find these non-failure-to-warn claims to be preempted in light of Morris and the Supreme Court's recent decision in Mutual Pharm., Co., Inc. v. Bartlett, ___ U.S. ___, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013).
Lastly, we do not agree with Lashley or Del Valle that some of their state law claims against generic manufacturers are parallel to federal law claims, and thus not preempted. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Hughes v. Boston Scientific, 631 F.3d 762 (5th Cir.2011). Medtronic and Hughes concern express preemption; in those cases, "parallel" state law claims against manufacturers of medical equipment were allowed to proceed because there was no express preemption found in the applicable statute. In Mensing, as here, the Supremacy Clause — not a statute — made it impossible for the generic defendant to do what state law required of it and, therefore, the state law claim was preempted.
In sum, the district courts correctly dismissed Appellants' claims against generic manufacturers, as these claims are preempted in light of Mensing and Bartlett.
Lashley and Del Valle next argue that the lower courts erred in granting summary judgment to brand manufacturers. We review motions for summary judgment de novo. EEOC v. WC&M Enters., 496 F.3d 393, 397-98 (5th Cir.2007). The moving party is entitled to summary judgement if there are no material facts in dispute and that party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
We disagree with Appellants' contentions that summary judgment was improper here. Their claims against brand manufacturers are foreclosed by Lashley and Del Valle's respective states' product liability laws (Mississippi's, in Lashley's case, and Texas's, in Del Valle's case), which shield the companies from liability for products they did not create. Miss. Code Ann. § 11-1-63; Tex. Civ. Prac. & Rem.Code Ann. § 82.001(2) (West 2012). Furthermore, because Appellants did not ingest the brand manufacturers' products, these defendants have no common-law duty to them.
The Mississippi Products Liability Act ("MPLA") applies "in any action for damages caused by a product" and requires a plaintiff to prove that it was the defendant's
Under Texas law, meanwhile, a products liability action is broadly defined as "any action against a manufacturer or seller for recovery of damages arising out of personal injury ... allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories." Tex. Civ. Prac. & Rem.Code Ann. § 82.001(2). The Texas Supreme Court has determined that under this statute, entities are "`manufacturers'... only with respect to their own products." Owens & Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 485 (Tex.2008) (internal quotation marks omitted). It has also found that "[a] fundamental principle of traditional products liability law is that the plaintiff must prove that the defendants supplied the product which caused the injury." Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989); see also Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex.1996) ("A manufacturer generally does not have a duty to warn or instruct about another manufacturer's products, even though a third party might use those products in connection with the manufacturer's own product.... Under traditional products liability law, the plaintiff must prove the defendant supplied the product that caused the injury. It is not enough that the seller merely introduced products of similar design and manufacture into the stream of commerce." (citations omitted)). Del Valle admits that she did not ingest the Schwarz brand defendants' product; thus, we find that Schwarz brand defendants are not liable under Texas products liability law.
Furthermore, "[u]nder Texas law, a drug manufacturer enjoys a rebuttable presumption that it is not liable for failure to warn if the FDA has approved `the warnings or information' accompanying the product alleged to have harmed the plaintiff." Lofton v. McNeil Consumer &
In sum, since Appellants did not take the brand manufacturers' products, the brand manufacturers are not liable for Appellants' injuries under Mississippi and Texas law. Therefore, we affirm the district courts' judgments regarding those defendants.
For the foregoing reasons, we AFFIRM the district courts' dismissals of the claims against both the Watson generic defendants and the Teva generic defendants. We further AFFIRM the grants of summary judgment to both the Pfizer brand defendants and the Schwarz brand defendants.