We do not view Mensing as overruling Foster
because the court in Foster did not reach its holding by relying on the
ability of a plaintiff to sue generic manufacturers. Instead, the court’s holding was based on its
interpretation of Maryland law and the conclusion that a name-brand
manufacturer has no duty of care to consumers that are not using the
manufacturer’s product. The Foster
court’s opinion in dicta on the viability of suits against generic
manufacturers was proved wrong, but this fact does not impose on name-brand
manufacturers a duty of care to customers using generic products. Likewise, decisions that relied upon Foster
to 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.
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1 comment:
This blog is often sharp and often funny. Humor in law is welcome, but personal attacks on a sick woman are not. You crossed the line when you referred to the plaintiff and said, "Now she's just nothing." You further insult her by writing, "Stick a fork in Demahy - it's done." Both remarks are crude and unbecoming of counsel in a decent society.
And, you misspelled "persistent."
Bill Cash
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