In a post-Mensing world, plaintiffs -- faced with almost certain dismissal of any claim based on labeling, promotion or warnings -- are scrambling to re-define their claims against generic drug manufacturers. They are most certainly looking for their port in a storm. As our faithful readers know, we are keeping track of post-Mensing generic drug preemption decisions here -- an ever growing list of dismissals of failure to warn claims.

Today, however, our focus is on how Mensing is being applied to some of plaintiffs’ “alternate” theories of liability. So we bring you two cases -- Gross v. Pfizer, Inc., ___ F. Supp.2d ___, 2011 WL 5865267 (D. Md. Nov. 22, 2011) (metoclopramide) and In re Fosamax Litigation, 2011 U.S. Dist. Lexis 135006 (D.N.J. Nov. 21, 2011) (alendronate sodium) (thanks to Anita Hotchkiss at Goldberg Segalla for forwarding this one). A quick note of interest for brand-defendants – in Gross, the court had dismissed plaintiff’s claims against the brand defendants because she had not ingested the brand-name drug. Gross, 2011 WL 5865267, *1. Post-Mensing, the court denied plaintiff’s motion to reconsider its judgment in favor of the brand defendants. Id.