MENSING v. WYETH, INC.

No. 08-3850.

588 F.3d 603 (2009)

Gladys MENSING, Plaintiff-Appellant, v. WYETH, INC., doing business as Wyeth; Pliva, Inc.; Teva Pharmaceuticals, USA, Inc.; Alpharma, Inc., doing business as Alpharma Pharmaceuticals; UDL Laboratories, Inc.; Actavis Elizabeth, LLC; Schwarz Pharma, Inc.; Purepac Pharmaceutical Company, and the following fictitious party defendants (whether singular or plural, individual or corporate): No. 1, that entity which originally obtained permission from the U.S. Food and Drug Administration to market the drug branded Reglan No. 2, that entity which obtained permission from the FDA to market the Reglan, metoclopramide and/or metoclopramide HCI ingested by Gladys Mensing No. 3, that entity which originally manufactured and sold any Reglan which was ultimately ingested by Gladys Mensing No. 4, that entity which originally manufactured and sold any Reglan, metoclopramide and/or metoclopramide HCI which was ultimately ingested by Gladys Mensing No. 5, that entity which marketed Reglan or generic metoclopramide and/or metoclopramide HCI, jointly and individually, Defendants-Appellees.

United States Court of Appeals, Eighth Circuit.

Filed: November 27, 2009.


Attorney(s) appearing for the Case

Louis M. Bograd, argued, Washington, DC, (Claire P. Prestel Washington, DC, Daniel J. McGlynn, Baton Rouge, LA, Michael K. Johnson, Lucia J.W. McLaren, Wilbur W. Fluegel, Minneapolis, MN, on the brief) for appellant.

Henninger S. Bullock, argued, New York, NY, (Scott Chesin, Andrew Calica, New York, NY, Bridget Maria Ahmann, Erin Marie Verneris, Minneapolis, MN, on the brief) for appellee, Schwarz Pharma, Inc.

Joseph Paul Thomas, argued, Cincinnati, OH, (Linda E. Maichl, Cincinnati, OH, David L. Hashmall, Minneapolis, MN, on the brief) for appellee, Pliva, Inc.

Before WOLLMAN, MURPHY, and BYE, Circuit Judges.


MURPHY, Circuit Judge.

Gladys Mensing brought this failure to warn and misrepresentation case against a number of manufacturers of Reglan and its generic form, alleging that the medication she had taken caused her to develop tardive dyskinesia, a severe neurological movement disorder. The manufacturers moved for summary judgment and dismissal. The district court dismissed her claims against the generic defendants on the basis of federal preemption and against the...

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