Thursday, March 28, 2013

Rick Schulte Fights for Justice in a Preemption Case, Gets client a W

I'm lucky to count lawyer Rick Schulte as both a friend and fellow lawyer on cases involving innocent consumers.

Rick has been toiling away in pharmaceutical litigation, and he (like others) has been faced with the daunting task of addressing preemption issues in cases involving generic drugs.

As many lawyers know, in 2011, the Supreme Court ruled in PLIVA v. Mensing that consumers could not bring failure to warn lawsuits against generic drug manufacturers under state law because generic drug makers are bound by federal law to match a drugs label to its brand name equivalent. However, during the High Court trial, it was brought out that PLIVA failed to keep the generic drug metoclopromide updated with the warning label on the brand name counterpart Reglan.

Rick brought suit in the case of Eleanor Fulgenzi. She used PLIVA’s metoclopromide between 2004 and 2007 to treat her gastric reflux, while the generic drug carried the outdated warning. It was filed before the Mensing decision was handed down. 

After Mensing,an Ohio district court found that the Supreme Court ruling in PLIVA v. Mensing barred her claims against the generic drug maker. The 6th Circuit Court disagreed and reinstated the case.

Rick argued that according to the federal rule of sameness, PLIVA was obligated to update the warning label of the generic drugs as the warning label on the brand drug was updated. In its unanimous decision, the three-judge panel wrote that “not only could PLIVA have independently updated its labeling to match that of the branded manufacturer … it had a federal duty to do so,” (Fulgenzi v. PLIVA Inc, 6th U.S. Circuit Court of Appeals, No. 12-3504). 

PDF here
It's too easy now for any lawyer to proclaim that he and his office are "mass tort" lawyers. The label does violence in my opinion to those who work tirelessly, in sometimes hostile jurisdictions, to gain a measure of justice against seemingly insurmountable odds when harmed by a drug. Rick's work tells you all you need to know about him. He ran to the battle not from it. 
Read the opinion.  Give him a call or find his email online and send a note.   "There are big days and there are small days" (Warhorse) and the day the opinion was issued was a big day. 

There is more work to do in that case of course. Rick, good work and good luck.