### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 31011

TINA JOHNSON,
Plaintiff

– Appellant
v. TEVA PHARMACEUTICALS USA, INCORPORATED; QUALITEST PHARMACEUTICALS, INCORPORATED; WYETH, L.L.C.; SCHWARZ PHARMA, INCORPORATED; ALAVEN PHARMACEUTICAL, L.L.C.; GENERICS BIDCO I, L.L.C

. , doing business as Qualitest Pharmaceuticals, Incorporated,
Defendants

– Appellees

Appeal from the United States District Court for the Western District of Louisiana

Before SMITH, DENNIS, and HIGGINSON, Circuit Judges

. HIGGINSON, Circuit Judge : Tina Johnson filed this products liability suit against generic and brand

name manufacturers of the prescription drug metoclopramide. Johnson alleges that her long

- term use of generic metoclopramide caused her to develop a neurological disorder known as tardive dyskinesia, and that manufacturers provided misleading and inadequate warnings as to the risks associated with long

- term use of the drug

. The district court dismissed Johnson’s claims against the brand

- name manufacturers under Rule 12(b)(6), grante d judgment on the pleadings for the generic manufacturers under Rule 12(c), and denied United States Court of Appeals Fifth Circuit 

### FILED July 11, 2014 Lyle W. Cayce Clerk Case: 12-31011 Document: 00512696002 Page: 1 Date Filed: 07/11/2014No. 12

- 31011 Johnson l eave to amend her complaint. Because all of Johnson’s claims are either preempted by federal law, not viable under Louisiana law, or otherwise fail to state a claim , we AFFIRM the district court’s orders. I. Background Metoclopramide is a prescription d rug approved by the F ood and Drug Administration (“FDA”) and available in both brand ( “ Reglan ” ) and generic formulations. From July 2002 until March 2009, Johnson consumed generic metoclopramide to treat digestive problems. In prescribing metoclopramide , Johnson’s physicians relied on the drug’s warning labels, including the information contained in the drug’s package inserts and the Physicians’ Desk Reference

. Johnson alleges that, as a result of her long

- term use of generic metoclopramide, she develope d tardive dyskinesia. In March 2010, Johnson filed this suit against generic and brand

- name manufacturers of metoclopramide, including Teva Pharmaceuticals, USA, Inc.; Qualitest Pharmaceuticals, Inc.; and Generics B idco I, LLC (“Generic Defendants”), and also Wyeth , LLC; Schwarz Pharma, Inc.; and Alaven Pharmaceuticals, LLC (“Brand Defendants”). Johns on alleges that both Generic and Brand Defendants provided inadequate, misleading, and false warnings as to risks associa ted with long

- term use of the drug

. Johnson brought claims against Generic Defendants under the Louisiana Products Liability Act (“LPLA”) for inadequate warning, design defect, and breach of express warrant y . Johnson brought claims against Brand Defendan ts for breach of warranty, misrepresentation, fraud, and violation of the Louisiana Unfair Trade Practices Act (“LUTPA”). The district court granted Brand Defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the ground that Bran d Defendants did not manufacture the generic metoclopramide consumed by Johnson

. After dismissing the claims against Brand Defendants, the district court stayed the 2 Case: 12-31011 Document: 00512696002 Page: 2 Date Filed: 07/11/2014No. 12

- 31011 claims against Generic Defendants pending the Supreme Court’s decision in PLIVA , Inc. v. M ensing , — U.S.

— , 131 S.Ct. 2567 (2011)

. Following Mensing , the district court granted Generic Defendants’ motion for judgment on the pleadings under Rule 12(c), holding that Johnson’s claims against Generic Defendants are preempted by federal law. The dis trict court further denied Johnson’s request to amend her complaint to add two additional claims and denied Johnson’s motion for reconsider ation . Johnson timely appealed. II. Claims Against Generic Defendants On appeal, Johnson contends that the district c ourt erred in granting Generic Defendants’ Rule 12(c) motion f or judgment on the pleadings. Johnson further contends that the district court abused its discretion in denying her leave to amend her complaint. We review a district court’s ruling on a Rule 12(c) motion for judgment on the pleadings de novo , using the same standard appl icable to a Rule 12(b)(6) motion to dismiss. Gentilello v. Rege , 627 F.3d 540, 543

- 44 (5th Cir. 2010)

. “To avoid dismissal, a plaintiff must plead sufficient facts to state a claim for reli ef that is plausible on its face .” Id . at 5 44 (internal quotation marks and citation omitted). Additionally, we review a district court’s ruling on a motion to amend for abuse of discretion. Briggs v. Mississippi , 331 F.3d 499, 50 8 (5th Cir. 2003). A district court does not abuse its discretion in den ying leave to amend if amendment would be futile

. Id.

a. Failure

- to

- Warn Claims In her original complaint, Johnson brought a claim against Generic Defendants for inadequate warning u nder La. Rev. Stat. Ann. § 9:2800.57

. Johnson alleges that generic metoclopramide was “unaccompanied by proper warnings regarding the serious risks associated with ingestion of the drug .” The district court concluded that Johnson’s claim i s preempted by federal law in light of Mensing

. 3 Case: 12-31011 Document: 00512696002 Page: 3 Date Filed: 07/11/2014No. 12

- 31011 In Mensing , t he Supreme Court held a similar failure

- to

- warn claim against generic manufacturers of metoclopramide preempted by federal law

. Mensing , 131 S.Ct. at 2572. T he Court reasoned that federal law demands that “generic drug labels be the same at all times as the corresponding brand

- name drug labels.” Id. at 2578. Th is is known as the “duty of sameness.” Id. at 2576. “This duty of sameness is overlaid with the agency’s pronouncement that ‘Dear Doctor’ letters (or other forms of warnings) from a generic manufacturer constitute labeling.” Lashley v. Pfizer, Inc. , 750 F.3d 470, 474 (5th Cir. 2014). Because federal law requires generic drug labels to be the same as brand

- name labels, a ny state

- law duty that requires generic manufacturers to use safer labels conflict s with th e federal “duty of sameness” and is preempted by federal law. Mensing , 131 S.Ct. at 2577, 25 78 (“Where state and federal law ‘directly conflict,’ state law must give way.”) ; Morris v . PLIVA, Inc. , 713 F.3d 774, 776

- 77 (5th Cir. 2013) (“Whether a warning is placed on the label on the bottle or in letters to distributors, any state law duty requiring generic manufacturers to act unilaterally in this area is preempted by federal law.” ); see also Eckha rdt v. Qualitest Pharm. , Inc. , 751 F.3d 674, 678 (5th Cir. 2014); Lashley , 750 F.3d at 747

. T he crux of Johnson’s failure

- to

- warn claim alleged in her original complaint appears to be that the warning s accompanying generic metoclopramide were inadequate and that Generic Defendants should have provided stronger warning labels

. Because Generic Defendants were unable to provide stronger warning s as a matter of federal law, Johnson’s failure

- to

warn claim i s preempted

. See Mensing , 131 S.Ct. at 2578. Accordingly, t he district court did not err in granting Generic Defendants’ motion for judgment on the pleadings for this claim. Johnson also requested leave to amend her complaint to add two additional f ailure

- to

- warn claims. First, Johnson requested leave to add a 4 Case: 12-31011 Document: 00512696002 Page: 4 Date Filed: 07/11/2014No. 12

- 31011 claim alleging that Generic Defendants failed to adequately communicate the information contained in the FDA

- approved l abel

. In 2004, the FDA approved a label change to warn that “[t] herapy s hould not exceed 12 weeks in duration.” Mensing , 131 S.Ct. at 2572. Johnson alleges that Generic Defendants are liable for failing to send “Dear Doctor” letters or similar communications to alert medical providers to the 2004 label change. This claim is controlled by Morris and Lashley , in which we held nearly identical c laim s preempted by federal law

. See Morris , 713 F.3d at 777; Lashley , 750 F.3d at 474

- 75

. In Morris , we wrote : Mensing forecloses such claims because failure to “communicate” extends beyond just a label change. To avoid liability, the manufacturer must take affirmative steps to alert consumers, doctors, or pharmacists of changes in the drug label. Because the duty of sa meness prohibits the generic manufacturers from taking such action unilaterally, they are dependent on brand

- names taking the lead. Under federal law, the inquiry is whether the brand

- name manufacturers sent out a warning, not whether the proposed warning to be disseminated contains substantially si milar information as the label. Because no brand

- name manufacturer sent a warning based on the 2004 label change, the generic manufacturers were not at liberty to do so. As Mensing concluded, preempt ion is thus triggered since it would be impossible for [the generic manufacturer] to comply with both the state law duty to warn and the federal law duty of sameness. Morris , 713 F.3d at 7 77 (internal citations omitted). In this case, Johnson a cknowledges that no brand

- name manufacturer sent a warning based on the 2004 label change

. Accordingly, Generic Defendants were not at liberty to do so. See i d. ; Lashley , 750 F.3d at 474

- 75 ; see also Guarino v. Wyeth, LLC , 719 F.3d 1245, 1249 (11th Cir. 2013)

. But see Teva Pharm. USA, Inc. v. Superior Court , 158 Cal. Rptr. 3d 150, 161

- 64 (Cal. Ct. App. 2013)

. Following controlling precedent, we conclude that Johnson’s

5 Case: 12-31011 Document: 00512696002 Page: 5 Date Filed: 07/11/2014No. 12

- 31011 proposed claim is preempted by federal law, and the district court did not abuse its discretion in denying Johnson leave to add this claim

. Second, Johnson r equested leave to add a claim alleging that generic manufacturer T eva failed to incorporate the 2004 label change into its label until 2005

. This claim is also controlled by Morris

. See Morris , 713 F.3d at 777; see also Lashley , 750 F.3d at 4 75. In Morris , we observed that “it is logically incoherent to conclude that [the generic manufacturer] had a duty to apply the 2004 warning label when Appellants also assert repeatedly that no labels predating 2009 were adequate. T ort liability does not arise for failure to attach an inadequate label.” Morris , 713 F.3 d at 777. We further concluded that “a claim that [the generic manufacturer] breached a federal labeling obligation sounds exclusivel y in federal (not state) law, and is preempted.” Id. In light of Morris , we hold that the district court did not abuse its discretion in denying Johnson leave to add this claim. 1 b. Design

- Defect Claim In her original complaint, Johnson also b r ought a claim against Generic Defendants for design defect under La. Rev. Stat. Ann. § 9:2800.56. Johnson alleges that “the foreseeable risks of serious harm posed by the drug far outweigh its alleged benefits.” To establish a design

- defect claim under Louisiana law, a plaintiff must show: (1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and (2) The likelihood that the product’s design would cause the claimant’s

1 Johnson’s proposed failure

- to

- update claim fails for an additional reason: Johnson does not plausibly allege that T eva ’s one

- year delay in updating its label caused her inj uries. Johnson a cknowledges that T eva updated its label in July 2005 and that she continued to take metoclopramide until March 2009. Thus, Johnson ’s doctors continued to prescribe, and she continued to ingest, the drug for almost four years after T eva updated its label. Johnson does not allege any facts indicating that her doctors would not have continued to prescribe, and she would not have continued to consume , metoclopramide had T eva updated its label in 2004 instead of 2005. 6 Case: 12-31011 Document: 00512696002 Page: 6 Date Filed: 07/11/2014No. 12

- 31011 damage and the gravity of that damage outweig hed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. La. Rev. Stat. Ann. § 9:2800.56

. The second prong involves a risk

- utility analysis. See Krummel v. Bombardier Corp. , 206 F.3d 548, 551 (5th Cir. 2000). Louisiana law instructs courts , in conducting this risk

- utility analysis , to consider whether the product contains an “ adequate warning

. ” See La. Rev. Stat. Ann. § 9:2800.56. For the reason s articulated in Bartlett , Johnson’s design

- defect claim is
preem pted by federal law. See Mut. Pharm. Co. , Inc. v. Bartlett , — U.S.

— , 133 S. Ct. 2466 (2013) (holding a New Hampshire design

- defect claim against generic manufacturers preempted by federal law). Federal law requires a generic drug to have the same chemical composition and labeling as its brand

name counterpart

. Id. at 2471 , 2475 ( “[T]he FDCA requires a generic drug to have the same active ingredients, route of administration, dosage form, strength , and labeling as the brand

- name drug on which it is based.” ). Johnson’s state

- law claim that Generic Defendants should have designed metoclopramide’s composition or labeling differently conflicts with these federal requirements. See i d. at 2475

- 77. B ecause Generic Defendants were unable to change metoclopramide’s design as a matter of federal law, Johnson’s design

- defect claim is preempted. See id. ; see also Eckhardt , 751 F.3d at 678

- 79 ; Lashley , 750 F.3d at 475

- 76. Johnson contends that her de sign

- defect claim is not preempted because Generic Defendants could have complied with their duties under both federal and state law by declining to sell metoclopramide. The Supreme Court reject ed this “stop

- selling” rationale in Bartlett as “incompatible with our pre - emption jurisprudence.” Bartlett , 133 S. Ct. at 2477. “Our p re - emption cases presume

7 Case: 12-31011 Document: 00512696002 Page: 7 Date Filed: 07/11/2014No. 12

- 31011 that an actor seeking to satisfy both his federal and state

- law obligations is not required to cease acting altogether in order to avoid l iability.” Id

. Johnson further contends that her design

- defect claim is distinguishable from those that courts have previously found preempted because Louisiana law allows liability for a design defect under the theory that there exists a safer alternativ e product, not just a safer alternative design. Even assuming this to be the case, Johnson’s argument does not save her claim. Johnson did not allege the existence of a safer product in her complaint. Nor did Johns on move to amend on this ground. For the reasons above, the district court did not err in finding that Johnson’s design

- defect claim, as alleged in her complaint, is preempte d by federal law. The district court properly granted judgment on the pleadings for Generic Defendants on this claim.

c. Express

- Warranty Claim Finally, Johnson br ought a claim against Generic Defendants for breach of express warrant y under La. Rev. Stat. Ann. § 9:2800.58. Johnson alleges that the metoclopramide manufactured by Generic Defendants was unreasonably dangerous because it did not conform to the ir express w arranties about the product

. As discussed above, f ederal law prohibited Generic Defendants from unilaterally altering the drug’s composition or labeling. See B artlett , 133 S. Ct. at 2471, 2475

. Any m odified or supplemental warranties by Generic Defendants would have run afoul of the “duty of sameness” identified in Mensing

. “Any state law

- based holding that the generic manufacturers should have acted differentl y with respect to warnings or should have ceased manufacturing these products because of insufficient warnings not only violates the duty of sameness but conflicts with FDA’s exclusive authority to approve drugs and drug labels.” Morris , 713 F.3d at 778 ( “A breach of warranty claim that goes directly to the sufficiency of the generic manufacturers’ 8 Case: 12-31011 Document: 00512696002 Page: 8 Date Filed: 07/11/2014No. 12

- 31011 labeling is clearly unacceptable

. ”); see also Eckhardt , 751 F.3d at 680 ; Lashley , 750 F.3d at 475

- 76 ; Drager v. PLIVA USA, Inc. , 741 F.3d 470, 479 (4th Cir. 201 4); Schrock v. Wyeth, Inc. , 727 F.3d 1273, 1287

- 89 (10th Cir. 2013). Accordingly , the district court did not err in finding Johnson’s breach

- of

warranty claim preempted by federal law, and in granting judgment on the pleadings on this claim. III. Claims Agains t Brand Defendants Johnson next contends that the district court erred in dismissing her claims against Brand Defendants under Rule 12(b)(6)

. Johnson alleges that Brand Defendants are liable for providing false and misleading information and failing to warn medical providers as to the risks associated with long

- term use of Reglan. Brand Defendants respond that Johnson ’s claims are barred by the Louisiana Products Liability Act (“LPLA”) because Jo hnson never ingested Reglan manufactured by Brand Defendants , only generic metoclopramide

. In dismissing Johnson’s claims , the district court reasoned that the LPLA provides the exclusive remedy against manufacturers in products liability suits under Lou isiana law, and that Johnson could not maintain claims against Brand Defendants under the LPLA because Brand Defendants did not manufacture the generic metoclopramide that caused Johnson’s injuries . The district court further reasoned that Johnson’s claim s also fail because “brand name drug manufacturers do not owe a continuing duty to consumers of the generic drug equivalent.” “We review a district court’s decision on a 12(b)(6) motion de novo, accepting all well

- pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Stokes v. Gann , 498 F.3d 483, 484 (5th Cir. 2007). To avoid dismissal, a plaintiff must plead “enough facts t o state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007 ). 9 Case: 12-31011 Document: 00512696002 Page: 9 Date Filed: 07/11/2014No. 12

- 31011 As a preliminary matter, Johnson moves to certify to the Louisiana Supreme Court the question of whether a brand

- name manufa cturer can be held liable for injuries caused by a plaintiff’s ingestion of a generic product that was neither manufactured nor distributed by the brand

- name manufacturer

. We may certify a determinative question of Louisiana law to the Lo uisian a Supreme Court if there is “no clear controlling precedent” of that court . La. Rev. Stat. Ann. § 13 : 72.1 . However, “[a]s a general proposition we are chary about certifying question of law absent a compelling reason to do so.” Jefferson v. Lead Indus. Ass’n, Inc. , 106 F.3d 1245, 1247 (5th Cir. 1997). Standing alone, “the absence of a definitive answer from the state supreme court on a particular question is not sufficient to warrant certification.” Id. “Neither is certificati on a proper avenue to change our bi n ding precedent.” Id. Furthermore, “[t]he court should be slow to honor a request for certification from a party who chose to invoke federal jurisdiction.” Id. at 12 48 (quoting 17A C. Wright, A. Miller, & E. Cooper, Fe deral P ractice and Procedure § 4248 (2d ed. 1988) ). We conclude that certification is not warranted in this case. Our conclusion is informed by a number of considerations , including this court’s prior decision in Demahy v. Schwarz Pharma, Inc. , 702 F.3d 177 (5th Cir. 2012), cert. denied , 134 S. Ct. 57 (2013); the numerous other decisions interpreting Louisiana law on this subject ; 2 Johnson’s decision to file suit in federal court; and the text of the LPLA

.

2 See, e.g. , Whitener v. PLIVA, Inc. , No. 10

- 1552, 2014 WL 1276489, at *6

- 7 (E.D.La. Mar. 27, 2014); Cooper v. Wyeth, Inc. , No. 09

- CV

- 929, 2010 WL 4318816, at *2

- 3 (M.D.La. Oct. 26, 2010); Craig v. Pfizer, Inc. , No. 3:10

- 00227, 2010 WL 2649545, at *2

- 4 (W.D.La. May 26, 2010); Washington v. Wyeth, Inc. , No. 3:09

- CV

- 01343, 2010 WL 450351, at *2 (W.D.La. Feb. 8, 2010); Morris v. Wyeth, Inc. , No. 09

- 0854, 2009 WL 4064103, at *2

- 5 (W.D.La. Nov. 23, 2009); Stanley v. Wyeth, Inc. , 991 So. 2d 31, 35 (La. Ct. App. 2008). 10 Case: 12-31011 Document: 00512696002 Page: 10 Date Filed: 07/11/2014No. 12

- 31011 Turning to the merits of Johnson’s appeal, our p rior decision in Demahy resolves Johnson’s claims against Brand Defendants. In Demahy , we addressed nearly identical claims brought by a consumer of generic metoclopramide against brand

- name manufacturers, including claims for misrepresentation, fraud, and violation of LUTPA. Demahy , 702 F.3d at 180

- 81. Demahy appealed the district court’ s denial of her Rule 59 (e) motion for relief from the district court’s dismissal of her claims against t he brand

- name manufacturers in light of the Supreme Court’s decision in Mensing

. Id. at 182. We affirmed the district court’s ruling. In doing so, we reasoned that prior to Mensing , Louisiana law did not provide liability against brand

- name manufacturer s for injuries caused by a plaintiff’s ingestion of a generic product , and that nothing in Mensing altered this conclusion

. Id. at 182

- 84. We wrote: The Louisiana Products Liability Act (“LPLA”) provides that it is the exclusive remedy for products liab ility suits, stating that “[a] claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in this Chapter.” La. Rev. Stat. Ann. § 9:2800.52. Under the LPLA, recovery is not av ailable against a manufacturer if the manufacturer did not produce the offending product. Thus, according to pre

- Mensing Louisiana caselaw, Demahy’s claims against [the brand

- name manufacturers] fail because they did not manufacture the medication she ac tually consumed. Id. at 182

- 83 (internal quotation marks and citations omitted) . We further explained that “the Supreme Court’s decision in Mensing had no effect on Louisiana state law.” Id. at 184. Following Demahy , we conclude that Johnson’s claims against Brand Defendants are foreclosed by the LPLA. Brand Defendants, like the brand

name manufacturers in Demahy , are “manufacturers” within the LPLA’s exclusivity provision. See La. Rev. Stat. Ann. § 9:2800.52 (“A claimant may not recover from a manu facturer for damage caused by a product on the basis of any theory of liability that is not set forth in this Chapter.”); see also La. Rev. 11 Case: 12-31011 Document: 00512696002 Page: 11 Date Filed: 07/11/2014No. 12

- 31011 Stat. Ann. § 9:2800.53 ( defining “manufacturer” as, inter alia , “ a person or entity who is in the business of manufacturing a product for placement into trade or commerce ”). Johnson argu es that Brand Defendants are not “manufacturers” under the LPLA because they did not manufacture the product Johnson consumed . However, we reject ed this same argument in Demahy

. See Demahy , 702 F.3d at 183 n.4 (“ Demahy argues that the LPLA . . . does not apply to her claims because Wyeth and Schwarz are not ‘manufacturers,’ given that they have no connection to the product she actually consumed. This argument is unavailing. The vast majority of decisions have held that the LPLA broadly applies to all suits involving injuries from products, and these decisions rejected the argument that common law tort claims can still be brought for injuries stemming from products under facts

ne arly identical to those in the current case.”); see also Lashley , 750 F.3d at 477 (“This argument fails because brand defendants are, indeed, manufacturers

— and were they not, there would be no relationship on which to presume liability (since they did not design the drug).”). As a result , the LPLA provides Johnson’s exclusive remedy against Brand Defendants, and Johnson’s non

- LPLA claims are barred. See Demahy , 702 F.3d at 183 . To the extent that Johnson’s complaint can be construed as bringing claims against Brand Defendants under the LPLA, these claims fail because “recovery is not available under LPLA against a manufacturer if the manufacturer did not produce the offending product.” Id. at 182 ; see also Stahl v. Novartis Pharms. Corp. , 283 F.3d 254, 260

- 61 (5 th Cir. 2002) ; Jefferson , 106 F.3d at 1252. Therefore, consistent with Demahy , we hold that Johnson’s claims against Brand Defendants fail under Louisiana law because Brand Defendants did not manufacture the medication Johnson consumed. Also consistent with Demahy , we conclude that, even if the LPLA did not apply, Johnson has not established that Brand Defendants owed Johnso n a 12 Case: 12-31011 Document: 00512696002 Page: 12 Date Filed: 07/11/2014No. 12

- 31011 duty of care. See Demahy , 702 F.3d at 183 n.4 (“[E]ven if the LPLA did not apply, Demahy’s tort claims would fail since [the brand

- name manufacturers] did not manufacture the generic product giving rise to Demahy’s claims, and thus owed Demahy no duty of care.”); Stanley v. Wyeth, Inc. , 991 So. 2d 31, 34

- 35 (La. Ct. App. 2008) ( “[A] name brand drug manufacturer owes no legal duty to the consumer of a generic equivalent of its drug

. ”); Fricke v. Owens

- Corning Fiberglas Corp. , 618 So. 2d 473, 475 (La. Ct. App. 1993) ; see also Solomon v. Walgreen Co. , 975 F.2d 1086, 1089 (5 th Cir. 1992) (“ This cour t is Erie

- bound to apply state law as it currently exists, and may not change that law or adopt innovative theories of recovery.”). Thus, to the extent that Johnson’s claims rely on a duty of care, these claims fail for an additional reason as well. 3 A ccordingly, we perceive no error in the district court’s dismissal of Johnson’s claims against Brand Defendants. IV. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of Generic Defendants’ motion for judgment on the pleadings, grant of Brand

3 Our decision is consistent with other circuit decisions that have held (under the law s of several different states) that brand

- name manufacturers are not liable for injuries caused by a plaintiff’s ingestion of generic products

. See Eckhardt , 751 F.3d at 681

- 82 ; see, e.g. , Lashley , 750 F.3d at 476

- 78 (finding no liability under Mississippi and Texas law); Guarino v. Wyeth , LLC, 719 F.3d 1245, 1252 (11th Cir. 2013) (same under Florida law); Schrock v

. Wyeth, Inc. , 727 F.3d 1273, 128 2

- 8 5 (10th Cir. 2013) (same under Oklahoma law); Strayhorn v. Wyeth Pharm., Inc. , 737 F.3d 378, 401

- 06 (6th Cir. 2013) (same under Tennessee law); Bell
v . Pfizer, Inc. , 716 F.3d 1087, 1092

- 93 (8th Cir. 2013) (same under Arkansas law); Smith v. Wyeth, Inc. , 657 F.3d 420 , 423

- 24 (6th C ir. 2011) (same under Kentucky law) , cert. denied , 132 S. Ct. 2103 (2012); Foster v. Am. Home Prods. Corp. , 29 F.3d 165 , 170

- 71 (4th Cir. 1994) (same under Maryland law). But see Kellogg v. Wyeth , 762 F. Supp. 2d 694, 705

- 09 (D. Vt. 2010); Wyeth , Inc. v. Weeks , — So.3d

— , 2013 WL 135753, at *19 (Ala. Jan. 11, 2013), reh’g granted (June 13 , 2013); Conte v. Wyeth, Inc. , 85 Cal. Rptr. 3d 299 , 311

- 18 ( Cal. Ct. App. 2008). Additionally, to the extent that Johnson makes an argument on appeal based on the Louisiana Constitution, Article I, Section 22, Johnson waived this argument by failing to raise it in the district court. See AG Acceptance Corp. v. Veigel , 564 F.3d 695, 700 (5th Cir. 2009). We decline to consider this substantive argument for the first time on appeal. 13 Case: 12-31011 Document: 00512696002 Page: 13 Date Filed: 07/11/2014No. 12

- 31011 Defendants’ motion to dismiss, and denial of leave to amend. We further DENY Johnson’s motion for certification. AFFIRMED.

14 Case: 12-31011 Document: 00512696002 Page: 14 Date Filed: 07/11/2014No. 12

- 31011 JAMES L. DENNIS, concurring in part, dissenting in part: Although I concur in the majority opinion’s disposition of Plaintiff

Appellant Tina Johnson’s claims against the generic manufacturers, I respectfully dissent from the resolution of Johnson’s claims against the brand

name drug manufacturers because I would grant Johnson’s motion to certify the question of state law to the Louisiana Supreme Court. Johnson seeks certification to the Louisiana Supreme Court of the question whether, under Louisiana law, a brand

- name drug manufacturer may be held liable for harm caused by a consumer’s use of the generic manufacturer’s equivalent product

— a drug that was not directly manufactured by the brand

- name pharmaceutical corporation but, as the Supreme Court has exp lained, must contain labeling and warnings identical to that of the brand

- name product under the “duty of sameness.” PLIVA Inc. v. Mensing , 131 S. Ct. 2567, 2574

- 75 (2011). The question of whether Louisiana law imposes such liability should be certified to the Louisiana Supreme Court because it implicates significant public policy concerns with potentially grave ramifications, is dispositive as to Johnson’s claims against the brand

- name defendants, and there is no Louisiana Supreme Court case law availabl e to guide our analysis and only scant lower state court authority that is called into doubt by Mensing

. See In re Katrina Canal Breaches Litig. , 613 F.3d 504, 50 9 (5th Cir. 2010 ) ( “ [C]ertification may be advisable where important state interests are at s take and the state courts have not provided clear guidance on how to proceed.” ( quoting Free v. Abbott Labs., Inc. , 164 F.3d 270, 274 (5 th Cir. 1999))); see also Jesco Const. Corp. v. NationsBank Corp., 278 F. 3d 444, 448 (5th Cir. 2001) (“We have [certified a question] in the past when we determined that the issue carried ‘tremendous consequences’

. . . [or] widespread ramifications . . . .”) (internal citations omitted)

. 15 Case: 12-31011 Document: 00512696002 Page: 15 Date Filed: 07/11/2014No. 12

- 31011 The Louisiana Supreme Court has never addressed the extent of br and

name manufacturers’ liability to consumers of the generic equivalents. There is only one Louisiana Court of Appeals case on point and it’s questionable whether its reasoning stands today. In Stanley v. Wyeth, Inc., 991 So. 2d 31 (La. App. 1st Cir. 20 08) , the Court of Appeal of Louisiana, First C ircuit, held that the plaintiff failed to state a claim against the brand

- name manufacturers for negligent misrepresentation because brand defendants do not owe a duty to consumers of the generic equivalent. I d. at 33. In holding that brand

- name defendants owe no duty to consumers of the generic equivalent , the Stanley court reasoned that “a manufacturer cannot reasonably expect that consumers will rely on the information it provides when actually ingesting an other
company ’ s drug

. ” Id. at 34. The court in Stanley therefore based its holding
on pre - Mensing assumptions: that consumers of generic drugs do not rely upon the brand

- name ma nufacturer’s representations or warnings as to the risks of harm to consumers , and that a generic manufacturer’s “acceptance” of the brand

- name manufacturer’s label , is something of a choice. Id. Such reasoning is belied by Mensing’s holding that , under federal law , a generic manufacturer ’s label and communications must be the same as the br and

name equivalent, and the generic manufacturer is prohibited from unilaterally communicating to consumers any message different than that communicated by the brand name manufacturer. Thus, it is perfectly foreseeable, if not inevitable, th at, post

- Mensing, consumers of generic drugs and their physicians will rely exclusively upon the brand

- name manufacturer’s label to assess the safety risks of the generic drug equivalent. Mensing thus calls Stanley

— the sole Louisiana Court of Appeal decis ion on this issue

— into

16 Case: 12-31011 Document: 00512696002 Page: 16 Date Filed: 07/11/2014No. 12

- 31011 question. 1 Accordingly, the majority’s Erie guess that , under Louisiana law, a brand

- name manufacturer is not liab le to a consumer of the generic equivalent for failure to warn rests primarily on a single Louisiana Court of Appeals case, that, after Mensing , is questionable, if not erroneous. There is absolutely no post

- Mensing state law authority on the current state of Louisiana law

. Without any authoritative guidance from Louisiana courts, the majority’s opinion completely close s the courthouse doors to Louisiana consumers injured by inadequately labeled gener ic pharmaceutical products. By declin ing to certify the question to the Louisiana Supreme Court and affirming the district court’s decision below, both generic and brand

- na me pharmaceutical companies are essentially immunized from private suits by

consumers of generic drugs, who make up an overwhelming majority of pharmaceutical consumers. Today, “nearly 8 in 10 of prescriptions are filled with generic drugs. The use of ge neric drugs is expected to grow over the next few years as a number of popular drugs come off patent through 2015.” See Facts About Generic Drugs , U.S. F OOD AND D RUG A DMINISTRATION , http://www.fda.gov/drugs/resourcesforyou/consumers/buyingusingmedicinesaf ely/understandinggenericdrugs/ucm167991.htm ( last visited July 9, 2014 ). The threat of private suits for damages provide s substantial incentives to pharmaceutical manufacturers to ef fectively warn consumers of the safety risks associated with consumption of their products. The majority eviscerate s

1 I acknowledge that, as discussed in Part III of the majority opinion, our court has previously rejected an argument that Mensing altered Louisiana law. Demahy , 702 F.3d at 183. The Demahy decision, however, relies upon our court’s and federal district courts’ opinions interpreting Louisiana law and nowhere cites any authoritative Louisiana Supreme Court case. Id . (citing , inter alia, Stahl v. Novartis Pharms. Corp ., 283 F.3d 254, 260

- 61 ( 5th Cir. 2002) , and Possa v. Eli Lilly & Co ., No. 05

- CV

- 1307, 2006 WL 6393160 (M.D. La. May 10, 2006), for the proposition that “recovery is not available against a manufacturer if the manufacturer did not produce the offending product”). 17 Case: 12-31011 Document: 00512696002 Page: 17 Date Filed: 07/11/2014No. 12

- 31011 this incentive for brand

- name manufacturers, who control the content of the warning labels and communications to the public for both brand and generic drug equivalents, and thus will have “tremendous consequences” for the health and safety of consumers of pharmaceutical products in Louisiana

. Jesco , 278 F.3d at 448

. Tort claims against the manufacturer of drugs that allegedly inadequate ly warn the consumer as to potential risks are common. Given the nature of the parties involved,

— Louisiana has many consumers of generic drugs but is home to few, if any, drug manufacturers

— cases raising this issue will invariably be litigated in federal court, pursuant to diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441. Therefore, by denying Johnson’s motion to certify the question to the Louisiana Supreme Court, the majority ensures that federal courts facing the issue will continue down this uncha rted path of attempting to interpret a true “creature of state law,” Rubino v. Lynaugh , 845 F.2d 1266, 1275 (5th Cir. 1988), in the absence of any authoritative precedent, effectively barring the Louisiana Supreme Court the opportunity to articulate the

me aning of its own tort law relating to the health and protection of Louisiana citizens, and thereby offending basic principles of comity. Lastly, as Johnson notes in her motion to certify, an identical question was recently certified to the Alabama Suprem e Court by the United States District Court for the Middle District of Alabama. Despite federal precedent interpreting Alabama law as precluding liability for brand

- name defendants, once the question was certified, the Alabama Supreme Court concluded, con tra to the earlier federal court decisions, that brand

- name defendants are liable to consumers of the generic equivalent product for failing to provide adequate warnings. The Alabama Supreme Court discussed Mensing and its implications in concluding that under Alabama law, “a brand

- name drug 18 Case: 12-31011 Document: 00512696002 Page: 18 Date Filed: 07/11/2014No. 12

- 31011 company may be held liable for fraud or misrepresentation (by misstatement or omission), based on statements it made in connection with the manufacture of a brand

- name prescription drug, by a plaintiff claiming physica l injury caused by a generic drug manufactured by a different company.” Wyeth, Inc. v. Weeks , No. 11

- 01397, 2013 WL 135753 (Ala. Jan. 11, 2013), reh’g granted (June 13, 2013). The Alabama Supreme Court’s answer to the certified question rejected federal courts’ contrary decisions applying Alabama law, which had “held that Alabama law does not allow a person who consumed a generic version of a brand

- name drug to sue the brand

- name manufacturer based on fraudulent misrepresentation.” Id. at *9

- 10 ( discussing and rejecting, for example, Overton v. Wyeth, Inc., No. CA 10

- 0391, 2011 WL 1343392 (S.D. Ala. 2011) (unpublished), because the Overton court’s “conclusion t hat a generic manufacturer becomes responsible for its own warning label

. . . is incorrect” in light of Mensing ). The Louisiana Supreme Court should be afforded the same opportunity, particularly given the lack of a state Supreme Court case and the signi ficant impact that this panel’s decision will have on Louisiana citizens’ ability to seek redress for serious bodily injury caused by the consumption of an allegedly inadequately labeled generic drug. In conclusion, b ecause there is no precedent from the Louisiana Supreme Court on this case

- dispositive issue, the prior Louisiana case law is based on reasoning now undermined by Mensing , and the question implicates significant public policy concerns with potentially severe ramifications for the people of Lo uisiana , I respectfully dissent from the majority opinion’s resolution of Johnson’s claims against the brand

- name manufacturers and would grant Johnson’s motion to certify the question to the Louisiana Supreme Court.

19 Case: 12-31011 Document: 00512696002 Page: 19 Date Filed: 07/11/2014