Demahy's Done

To contact us Click HERE
Breaking news, sort of.  The plaintiff in the Demahy half of what was Mensing in the Supreme Court is nothing if not persistant.  Now she's just nothing.  She tried to get the Fifth Circuit to reconsider the other half of that opinion - state-law claims asserting that a branded manufacturer could be liable to her despite her using only the branded product (that is, Conte) - on the ground that Mensing preemption somehow changed Louisiana common law.  Well, today the Fifth Circuit, in an unpublished opinion (our reason for the "sort of") said "no."  Here's a link to the opinion.  The main argument rejected was that Mensing undermined the older Fourth Circuit opinion in Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994 (applying Maryland law).  But it didn't:

We do not view Mensing as overruling Fosterbecause the court in Foster did not reach its holding by relying on theability of a plaintiff to sue generic manufacturers.  Instead, the court’s holding was based on itsinterpretation of Maryland law and the conclusion that a name-brandmanufacturer has no duty of care to consumers that are not using themanufacturer’s product.  The Fostercourt’s opinion in dicta on the viability of suits against genericmanufacturers was proved wrong, but this fact does not impose on name-brandmanufacturers a duty of care to customers using generic products.  Likewise, decisions that relied upon Fosterto create a similar rule in Louisiana remain valid.

Demahy, slip op. at 8.  Moreover, the court held that even if Foster were undercut, that was a Maryland law decision, and Louisiana law wouldn't allow the claims anyway.  Id. at 8-9.

The court also addressed generic preemption (yet again), but mostly on the "mandate rule" that plaintiff didn't have any other claims before - so go away, plaintiff.  Nonetheless, to cover all its bases, the court said that all the purported "other" claims were either disguised warning claims (preempted) or design claims (which are also preempted). Demahy, slip op. at 12-13 (with nice string-cite footnotes).

Stick a fork in Demahy - it's done.