IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-31073

JULIE DEMAHY,

Plaintiff-Appellant

v.

SCHWARZ PHARMA, INCORPORATED; ACTAVIS, INCORPORATED,

Individually and as Successor in Interest of Purepac Pharmaceutical

Company; WYETH, Individually and as Successor-in-Interest of A.H. Robins

Company, Incorporated, 

Defendants-Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana 

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:

In this case, Plaintiff-Appellant Julie Demahy (“Demahy”) appeals the

district court’s denial of two motions: a motion for relief from judgment as to

Defendants-Appellees Wyeth, Inc. (“Wyeth”) and Schwarz Pharma, Inc.

(“Schwarz”), makers of the prescription drug metoclopramide under the brand

name Reglan, and a motion to set aside judgment as to Defendant-Appellee

Actavis, Inc. (“Actavis”), a manufacturer of a generic version of metoclopramide.

United States Court of Appeals

Fifth Circuit

F I L E D

October 25, 2012

Lyle W. Cayce

Clerk
No. 11-31073

2

We find that the district court was correct in denying the motions and,

accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

This case stems from Plaintiff-Appellant Demahy’s use of generic

metoclopramide. The Food and Drug Administration (“FDA”) approved Reglan

for use in 1980 and generic metoclopramide has been produced by a number of

generic manufacturers since 1985, including by Actavis. Wyeth acquired the

rights to name-brand Reglan in 1989 and it manufactured Reglan until 2001,

when it sold the rights to Schwarz. Schwarz manufactured name-brand Reglan

until 2008, when it sold the rights to Alaven Pharmaceutical LLC. 

In 1985, the FDA required that metoclopramide’s label be updated to

include a warning about the risk of tardive dyskinesia, an often irreversible

neurological disorder, and Actavis updated its label to include these warnings.

In 2004, the FDA approved the name-brand manufacturer’s requested change

to the Reglan label, adding a warning that Reglan should not be used for more

than twelve weeks. In 2009, the FDA issued a black-box warning—its strongest

warning—stating that treatment with metoclopramide can cause tardive

dyskinesia, and treatment “for longer than 12 weeks should be avoided in all but

rare cases.” Pliva, Inc. v. Mensing, 131 S. Ct. 2567, 2573 (2011) (quoting

Physician’s Desk Reference 2902 (65th ed. 2011)).

On April 28, 2008, Demahy filed the current suit in state court for

damages against Wyeth, Schwarz, and Actavis. The complaint sought damages

that Demahy allegedly suffered due to her use of generic metoclopramide from

2002 to 2007, asserting a variety of tort claims under Louisiana law. Demahy

alleges that her use of metoclopramide manufactured by Actavis caused her to

develop tardive dyskinesia. On June 2, 2008, the Defendants-Appellees removed

the case to the Eastern District of Louisiana based on diversity of citizenship.
No. 11-31073

3

On July 25, 2008, Demahy, Wyeth, and Schwarz jointly moved to dismiss

the claims against Wyeth and Schwarz without prejudice, and the district court

granted the motion on July 28, 2008. On July 29, 2008, Actavis filed a motion

to dismiss all of the claims against it under Federal Rule of Civil Procedure

12(b)(6), arguing that all of Demahy’s claims were preempted by federal law.

The district court denied the motion on October 28, 2008, and on interlocutory

appeal, this Court affirmed the district court’s decision on January 8, 2010.

Demahy v. Actavis, Inc., 593 F.3d 428 (5th Cir. 2010). 

On June 23, 2011, the Supreme Court reversed this Court’s decision,

holding that state laws that would require generic manufacturers to change a

drug’s label are preempted by federal law based on impossibility preemption,

which asks “whether the private party could independently do under federal law

what state law requires of it.” Mensing, 131 S. Ct. at 2579. Specifically, because

federal law requires generic drug labels to be the same as name-brand labels,

state laws requiring generic metoclopramide manufacturers to attach a safer

label to their product are preempted by the federal law. Id. at 2578. Justice

Thomas, writing for the majority, recognized that the Court’s decision dealt the

plaintiffs an “unfortunate hand,” because if they had taken Reglan, “their

lawsuits would not be pre-empted. But because pharmacists, acting in full

accord with state law, substituted generic metoclopramide instead, federal law

pre-empts these lawsuits.” Id. at 2581. The Supreme Court remanded the case

to this Court, and this Court remanded the case to the district court with

instructions to enter judgment in favor of Actavis. On August 30, 2011, the

district court entered judgment in favor of Actavis and dismissed Demahy’s suit

with prejudice. 

After the entry of judgment, Demahy filed two motions before the district

court. First, on September 28, 2011, Demahy filed a motion under Federal Rule

of Civil Procedure 60(b)(5), requesting that the district court grant her relief
No. 11-31073

4

from its July 28, 2008 order dismissing Wyeth and Schwarz. Second, on

September 29, 2011, Demahy filed a motion under Federal Rule of Civil

Procedure 59(e), or alternatively Rule 52(b) or 60(b)(6), asking the district court

to amend its judgment of dismissal as to Actavis. On October 14, 2011, the

district court denied both of these motions in a single order, stating that the

mandate of this Court instructed dismissal of all of Demahy’s claims and entry

of judgment in favor of Actavis, and that it was bound by these instructions

pursuant to the “mandate rule.” Demahy v. Wyeth Inc., No. 08-3616, 2011 WL

5056987, at *1 (E.D. La. Oct. 14, 2011). This timely appeal followed. 

STANDARD OF REVIEW

This Court reviews an order denying a motion for relief under Federal

Rule of Civil Procedure 60(b) for an abuse of discretion. Frazar v. Ladd, 457

F.3d 432, 435 (5th Cir. 2006). We also review a denial of a Rule 59(e) motion

to amend a judgment for an abuse of discretion. Rosenblatt v. United Way of

Greater Hous., 607 F.3d 413, 419 (5th Cir. 2010). We review de novo whether

a district court accurately interpreted and applied the directives of an

appellate court’s mandate. United States v. Lee, 358 F.3d 315, 320 (5th Cir.

2004).

ANALYSIS

In her appeal of the district court’s denial of her Rule 60(b)(5) motion to

reinstate her claims against Wyeth and Schwarz, Demahy argues that she

should be granted relief because the Mensing decision significantly altered case

law providing that name-brand manufacturers could not be held liable for

damages suffered from using a generic manufacturer’s products. With respect

to her Rule 59(e) motion, Demahy argues that the district court incorrectly

interpreted this Court’s mandate directing dismissal of Demahy’s claims against

Actavis, and thus erred in denying Demahy’s motion to amend the court’s

judgment of dismissal. We consider Demahy’s arguments in turn.
No. 11-31073

 It is notable that, although Demahy’s claims against Wyeth and Schwarz were 1

dismissed without prejudice, thus giving the district court jurisdiction over and power to

modify its order of dismissal until a final judgment was issued, see Stoffels v. SBC Commc’ns,

Inc., 677 F.3d 720, 726–728 (5th Cir. 2012), this Court has jurisdiction over the claims because

we find that they were subject to the final judgment issued by the district court on August 30,

2011 following remand from this Court. Wyeth and Schwarz are not specifically mentioned

in the actual entry of judgment, but in circumstances in which a court order is ambiguous as

to what parties and claims are being disposed of, and where “the district court clearly

intend[ed] to effect a final dismissal of a claim, we will construe its order accordingly, despite

ambiguous language that might indicate otherwise.” Picco v. Global Marine Drilling Co., 900

F.2d 846, 849 n.4 (5th Cir. 1990).

A motion asking the court to reconsider a prior ruling is evaluated either as a motion 2

to “alter or amend a judgment” under Rule 59(e) or as a motion for “relief from a final

judgment, order, or proceeding” under Rule 60(b). The rule under which the motion is

considered is based on when the motion was filed. Texas A&M Research Found. v. Magna

Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003). If the motion was filed within twenty-eight

days after the entry of the judgment, the motion is treated as though it was filed under Rule

59, and if it was filed outside of that time, it is analyzed under Rule 60. Id. Here, the relevant

motion was filed within the applicable twenty-eight day time frame, and we thus consider it

as a motion to amend the judgment under Rule 59(e).

Because the district court, in denying Demahy’s 60(b)(5) motion, relied on the mandate 3

from this Court, it would also be possible to review the district court’s dismissal under the

mandate rule, as discussed below with respect to the claims against Actavis. This distinction

is inconsequential, however, since the test for deciding whether a court may deviate from a

mandate is the same as the test for amending a judgment under Rule 59(e). See United States

v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (describing same three scenarios under which

departure from mandate is permissible).

5

1. Claims Against Wyeth and Schwarz (Name-Brand Defendants)1

Because it was filed within the relevant time period, we consider Demahy’s

Rule 60(b)(5) motion as a motion to amend the judgment under Federal Rule of

Civil Procedure 59(e). Under Rule 59(e), amending a judgment is appropriate 2

(1) where there has been an intervening change in the controlling law; (2) where

the movant presents newly discovered evidence that was previously unavailable;

or (3) to correct a manifest error of law or fact. Schiller v. Physicians Res. Grp.

Inc., 342 F.3d 563, 567 (5th Cir. 2003). A motion under Rule 59 cannot be used 3

to raise arguments or claims “that could, and should, have been made before the
No. 11-31073

 Demahy argues that the LPLA, which provides that a manufacturer is “a person or 4

entity who is in the business of manufacturing a product for placement into trade or

commerce,” La. Rev. Stat. Ann. § 9:2800.53, 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 nearly identical to those in the current case. See Cooper v. Wyeth,

No. 09-CV-929, 2010 WL 4318816, at *2 (M.D. La. Oct. 26, 2010); Johnson v. TEVA Pharma.

USA, Inc., No. 2:10-CV-404, 2010 WL 3271934, at *1–3 (W.D. La. Aug. 16, 2010); Craig v.

Pfizer, 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); Leblanc v.

Wyeth, Inc., No. Civ.A.04-0611, 2006 WL 2883030, at *3–6 (W.D. La. Oct. 5, 2006); Tarver v.

Wyeth, Inc., No. Civ.A.3-04-2036, 2006 WL 1517546, at *2–3 (W.D. La. Jan. 26, 2006). 

In one notable exception, a Louisiana Court of Appeals stated in a footnote that a

6

judgment issued.” Marseilles Homeowners Condo. Ass’n v. Fidelity Nat. Ins. Co.,

542 F.3d 1053, 1058 (5th Cir. 2008).

The only ground for amending the judgment under Rule 59(e) that

potentially applies in this case is an intervening change in the controlling law.

The Louisiana Products Liability Act (“LPLA”) provides that it is the exclusive

remedy for products liability 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 available against a manufacturer if the

manufacturer did not produce the offending product. Stahl v. Novartis Pharms.

Corp., 283 F.3d 254, 260–61 (5th Cir. 2002) (stating that an element of an LPLA

claim is “that the defendant is a manufacturer of the product”). Thus, according

to pre-Mensing Louisiana caselaw, Demahy’s claims against Wyeth and Schwarz

fail because they did not manufacture the medication she actually consumed.

See also Washington v. Wyeth, Inc., No. 3:09-CV-01343, 2010 WL 450351, at *2

(W.D. La. Feb. 8, 2010) (finding that similar claims fail under LPLA because

defendant did not manufacture products); Possa v. Eli Lilly & Co., No. 05-1307-

JJB-SCR, 2006 WL 6393160, at *1 (M.D. La. May 10, 2006) (same).4
No. 11-31073

negligent misrepresentation claim brought against a non-manufacturing name brand is not

covered by the LPLA. Stanley v. Wyeth, Inc., 991 So. 2d 31, 33 n.2 (La. App. 1 Cir. 2008). 

Nonetheless, the court rejected the claim under general tort law on the grounds that there is

no duty of care owed by name-brand manufacturers to consumers of generic products. Id. at

32–35. Although we need not reach the issue, this case illustrates the fact that, under this

view, even if the LPLA did not apply, Demahy’s tort claims would fail since Wyeth and

Schwarz did not manufacture the generic product giving rise to Demahy’s claims, and thus

owed Demahy no duty of care. A number of federal district court decisions applying Louisiana

state law have held the same. See, e.g., Johnson, 2010 WL 3271934, at *1–3; Craig, 2010 WL

2649545, at *2–4; Tarver, 2006 WL 1517546, at *2–3.

7

 In deciding whether an amendment to the judgment is warranted, we

must therefore determine whether the decision in Mensing altered Louisiana

tort law as it applies to the claims against Wyeth and Schwarz. Demahy argues

that Louisiana cases holding that her claims against name-brand manufacturers

cannot be brought have been overruled by the Supreme Court’s decision in

Mensing. According to Demahy, Mensing undermined the logic of the Fourth

Circuit’s decision in Foster v. American Home Products Corp., 29 F.3d 165 (4th

Cir. 1994), which she argues is a foundation of the Louisiana decisions ruling

that a party cannot be liable for damages resulting from use or consumption of

a product they did not manufacture. See, e.g., Stanley v. Wyeth, Inc., 991 So. 2d

31, 34 (La. App. 1 Cir. 2008) (favorably citing Foster and other cases). 

In Foster, the Fourth Circuit, construing Maryland law, rejected the

argument “that a name brand manufacturer’s statements regarding its drug can

serve as the basis for liability for injuries caused by another manufacturer’s

drug.” 29 F.3d at 170. The Foster court rejected claims nearly identical to those

brought in this suit, holding that the duty of care does not extend to third

parties. Id. at 171. The court also stated in dicta that plaintiffs could sue the

generic manufacturers who the court believed were “also permitted to add or

strengthen warnings and delete misleading statements on labels, even without

prior FDA approval.” Id. at 170. In Mensing, however, the Supreme Court held

that generic manufacturers could not alter the labeling on their own and that
No. 11-31073

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failure-to-warn claims against generic manufacturers are preempted on

impossibility grounds. 131 S. Ct. at 2577–78. According to Demahy, Foster’s

holding that plaintiffs cannot recover against name-brand manufacturers is no

longer valid because it was premised on the now-rejected notion that plaintiffs

could simply recover from generic manufacturers.

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. Foster, 29

F.3d at 171–72; see also Smith v. Wyeth, 657 F.3d 420, 423–24 (6th Cir. 2011)

(following Foster’s conclusion that name-brand manufacturers have no duty to

generic-brand consumers). 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. 

Moreover, even were we of the view that Mensing undermined Foster, the

implicit reversal of a Fourth Circuit decision about Maryland law would have no

effect on Louisiana law. See Morris, 2011 WL 4975317, at *1–3 (stating that

Foster’s continued validity has no effect on Louisiana law because “any finding

that Mensing upsets Foster would apply [only] to Maryland state law claims”).

This Court is bound by Louisiana law and we cannot create a new remedy.

Solomon v. Walgreen Co., 975 F.2d 1086, 1089 (5th Cir. 1992) (per curiam)

(stating that the court is bound to apply state law “as it currently exists[] and

may not change that law or adopt innovative theories of recovery”). Thus,

because the Supreme Court’s decision in Mensing had no effect on Louisiana
No. 11-31073

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state law, the district court’s denial of Demahy’s motion to amend the judgment

under Rule 59(e) was not an abuse of discretion.

2. Claims Against Actavis (Generic Defendant)

Regarding the district court’s dismissal of her claims against Actavis and

its denial of her Rule 59(e) motion to alter or amend judgment on those claims,

Demahy argues that the district court failed to correctly interpret this Court’s

mandate directing dismissal of Demahy’s claims against Actavis. The law of the

case doctrine posits that ordinarily “an issue of fact or law decided on appeal

may not be reexamined either by the district court on remand or by the appellate

court on a subsequent appeal.” United States v. Matthews, 312 F.3d 652, 657

(5th Cir. 2002) (quotation marks omitted). The “mandate rule” is a “specific

application of the general doctrine of law of the case.” Id. It “provides that a

lower court on remand must implement both the letter and the spirit of the

appellate court’s mandate and may not disregard the explicit directives of that

court.” Id. (quotation marks omitted); see also LULAC v. City of Boerne, 675

F.3d 433, 438 (5th Cir. 2012) (“It is well established that ‘an inferior court has

no power or authority to deviate from the mandate issued by an appellate

court.’” (quoting Briggs v. Penn. R.R., 334 U.S. 304, 306 (1948))). The mandate

rule and the law of the case have the same exceptions: “(1) [t]he evidence at a

subsequent trial is substantially different; (2) there has been an intervening

change of law by a controlling authority; and (3) the earlier decision is clearly

erroneous and would work a manifest injustice.” Id. at 657. In these

circumstances, a court can revisit previously-decided matters, or a district court

can exceed a mandate on remand. See United States v. Lee, 358 F.3d 315, 320

(5th Cir. 2004).

Demahy argues that Actavis’s appeal of the district court’s denial of

Actavis’s July 29, 2008 motion to dismiss “was limited only to consideration of

failure to warn claims that required a manufacturer to provide a warning that
No. 11-31073

 According to Demahy, those “other claims” are “(1) failure to warn claims that did not 5

require the manufacturer to add to or differ its warnings from those appearing in the label of

its brand-name counterpart; (2) claims arising under the LPLA for manufacturing defect,

design defect, and breach of express warranties; (3) claims under the [Louisiana Unfair Trade

Practices Act]; and (4) other claims arising from traditional tort concepts[.]” Id. at 16–17. 

10

was different or in addition to the warnings appearing in the label for the brandname version of the drug.” Br. of Pl.-Appellant Julie Demahy at 16 (Feb. 6,

2012) [hereinafter Appellant Br.]. She therefore states that her other claims

“could not have been encompassed within this Court’s direction to the lower

court to enter judgment in favor of Actavis.” Id. at 17 (emphasis and quotation

marks omitted). Consequently, she argues that “the district court committed 5

reversible error when it dismissed all of plaintiff’s claims under its

interpretation of the mandate.” Id. at 17.

As set out above in the factual history, Actavis’s July 29, 2008 motion to

dismiss sought “to dismiss all of Plaintiff’s claims asserted against it based on

federal conflict preemption principles.” Mot. to Dismiss of Def. Actavis Inc. at

1, Demahy v. Wyeth Inc., 2011 WL 5056987 (E.D. La. Oct. 14, 2011) (No.

08-3616) (emphasis added). The district court granted Actavis’s motion as to

Demahy’s fraud-on-the-FDA claim, but denied it as to her failure-to-warn claims.

Demahy v. Wyeth Inc., 586 F. Supp. 2d 642, 662 (E.D. La. 2008). Therefore, it is

clear that the district court viewed Demahy as having asserted only two types

of claims. This Court affirmed the district court’s denial of Demahy’s motion to

dismiss the failure-to-warn claims, Demahy, 593 F.3d at 449, but the Supreme

Court reversed, finding that state-law failure-to-warn claims against generic

drug manufacturers are preempted by federal law, Mensing, 131 S. Ct. at 2581.

This Court then vacated the district court’s order denying in part the motion to

dismiss, and it remanded for the entry of judgment in favor of Actavis. Demahy

v. Actavis, Inc., 650 F.3d 1045, 1046 (5th Cir. 2011). Accordingly, the district

court granted “judgment in favor of Defendant, Actavis, Inc. and against
No. 11-31073

11

Plaintiff, Julie Demahy, dismissing the Plaintiff’s suit with prejudice[.]”

Demahy v. Wyeth, Inc., No. 08-3616, 2011 WL 5505399, at *1 (E.D. La. Aug. 30,

2011).

Demahy argues that the mandate addressed only her failure-to-warn

claims, and states that “[n]o court has considered the arguments raised in

Plaintiff’s Rule 59 Motion[.]” Appellant Br. at 25 (emphasis omitted). While it

is true that the mandate addressed only her failure-to-warn claims, that is

simply because, at the time this Court issued the mandate, Demahy’s only

remaining claims had been characterized by the district court, this Court, and

the Supreme Court as failure-to-warn claims. The mandate plainly vacated the

district court’s order allowing Demahy’s failure-to-warn claims to go forward,

and directed the district court to grant judgment in favor of Actavis. Once the

district court had complied, and entered judgment in favor of Actavis on those

claims, Demahy had no claims remaining because the district court had

previously granted Actavis’s motion to dismiss her fraud-on-the-FDA claims.

With no claims remaining other than her failure-to-warn claims, the district

court could not grant Demahy’s motion to alter or amend its judgment without

being in derogation of the mandate rule. Thus, because it accurately interpreted

and applied the mandate, we find that the district court was correct in both

dismissing Demahy’s claims against Actavis and denying her Rule 59(e) motion.

Since we hold that the mandate was not in error and the district court

correctly followed the mandate, we need not reach the merits of Demahy’s

allegedly non-failure-to-warn claims. Nonetheless, even if we were to find that

these claims survived the mandate, or if we were to accept Demahy’s assertion

that the mandate was “erroneous,” Mem. of Law in Supp. of Pl.’s Mot. to Amend

and/or Alter J. at 1, Demahy v. Wyeth Inc., 2011 WL 5056987 (E.D. La. Oct. 14,
No. 11-31073

 We may “recall or reform” a previous mandate “to prevent injustice.” Nat’l Sur. Corp. 6

v. Charles Carter & Co., 621 F.2d 739, 741 (5th Cir. 1980); see also 5th Cir. R. 41.2, (“Once

issued a mandate will not be recalled except to prevent injustice.”). If the Court finds that

Demahy has viable claims that survive Mensing, and that it would work injustice to prevent

those claims from being heard, it could reform the previously-issued mandate to direct the

district court to hear those claims.

See, e.g., Strayhorn v. Wyeth Pharm., Inc., 2012 WL 3261377, at *14 (W.D. Tenn. Aug. 7

8, 2012); Metz v. Wyeth LLC, No. 8:10-CV-2658-T-27AEP, 2012 WL 1058870, at *2–7 (M.D.

Fla. Mar. 28, 2012); Moretti v. PLIVA, Inc., No. 2:08-CV-00396-JCM, 2012 WL 628502, at *5–6

(D. Nev. Feb. 27, 2012); Morris v. Wyeth, Inc., No. 09-0854, 2012 WL 601455, at *5 (W.D. La.

Feb. 23, 2012); Bartoli v. APP Pharms., Inc. (In re Pamidronate Prods. Liab. Litig.), 842 F.

Supp. 2d 479, 485 (E.D.N.Y. 2012); Gross v. Pfizer, Inc., 825 F. Supp. 2d 654, 658 (D. Md.

2012); Del Valle v. PLIVA, Inc., No. B:11-113, 2011 WL 7168620, at *5 (S.D. Tex. Dec. 21,

2011); Fullington v. PLIVA, Inc., No. 4:10-CV-00236-JLH, 2011 WL 6153608, at *5 (E.D. Ark.

Dec. 12, 2011).

See, e.g., Aucoin v. Amneal Pharma., LLC, No. 11–1275, 2012 WL 2990697, at *9 (E.D. 8

La. July 20, 2012); Johnson v. Teva Pharm. USA, Inc., No. 2:10-CV-404, 2012 WL 1866839,

at *4 (W.D. La. May 21, 2012); Eckhardt v. Qualitest Pharm. Inc., No. M-11-235, 2012 WL

1511817, at *7 (S.D. Tex. Apr. 30, 2012); Stevens v. Pliva, Inc., No. 6:10-0886, 2011 WL

6224569, at *2 (W.D. La. Nov. 15, 2011).

12

2011) (No. 08-3616), we would still affirm the district court insofar as the claims 6

are, at base, failure-to-warn claims, which would be preempted in light of

Mensing. Based on Demahy’s complaint, the only claims that are arguably not

failure-to-warn claims are those for breach of express warranty, R. at 524, and

for design defect, R. at 526. Since her express warranty claim names only

Wyeth, the only possible non-failure-to-warn claim Demahy has stated against

Actavis is for design defect. Post-Mensing, however, a seeming majority of

federal district courts to consider other state-law tort claims have found them

to be preempted based on the fact that the plaintiffs’ claims are failure-to-warn

claims under different names. In addition, other courts have specifically held 7

plaintiffs’ design defect claims against generic metoclopramide manufacturers

to be preempted based on Mensing. The result is that, with few exceptions, see, 8

e.g., Cooper v. Wyeth, Inc., No. 09-929-JJB, 2012 WL 733846, at *1 (M.D. La.

Mar. 6, 2012), courts have held that state-law tort claims against generic drug
No. 11-31073

13

manufacturers, including design defect claims, are preempted after Mensing.

Thus, although unnecessary for the disposition of this case, we are persuaded

that Demahy’s design defect claim would be preempted.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of

Demahy’s motion to set aside judgment as to Actavis and her motion for relief

from judgment as to Wyeth and Schwarz. 

AFFIRMED.