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Plaintiffs win remand to state court in drug labeling case, despite Mensing

Steven M. Sellers

A federal district court in Kentucky held that the Supreme Court’s decision in Pliva v. Mensing has at least one procedural limit—its preemption defense doesn’t apply to a claim that a defendant in a generic drug labeling case was fraudulently joined to defeat the court’s diversity jurisdiction. In Mensing, the Court held that the federal Food, Drug, and Cosmetic Act preempts state law failure-to-warn claims against generic prescription drug manufacturers, but the Court did not decide whether the preemption defense extended to drug distributors and joinder issues.