Pennsylvania Court Rejects Bid to Reargue Mensing Denial

Last month, we reported on the attempt by several generic manufacturers of metoclopramide to seek reargument before the Pennsylvania Superior Court on the issue of whether the claims against them are preempted under the jurisprudence of the United States Supreme Court’s opinion in PLIVA, Inc. v. Mensing and its progeny.

The generic manufacturers’ bid for reargument was rejected by the Pennsylvania Superior Court last week, meaning that the Superior Court’s prior divided decision that upheld the trial court’s refusal to dismiss the claims as preempted stands, at least for now.  It remains to be seen whether the generic defendants will try again before the Pennsylvania Supreme Court, but given the case-dispositive effect that a successful appeal would bring, it would not be surprising if they did so.  In any event, the issue of preemption and generic drugs remains an important one that all who practice in this area must continue to follow.

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