### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 USDC No. 2:08-CV-3616

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * In this case, Plaintiff-Appellant Juli e Demahy (“Demahy”) appeals the district cou r t ’s denial of two motions: a motion for relief from judgment as to Defendants-Appellees Wyeth, Inc. (“Wyeth”) and Schwarz Pharma, In c
. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 25 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-31073 Document: 00512032444 Page: 1 Date Filed: 10/25/2012No. 11-31073

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

name Re glan, and a motion to set aside judgment as to Defendant-Appellee Actavis, Inc. (“Actavis”), a manufacturer of a generic version of metoclopramide. We find that the district court was correct in denying the m o t i o n s a n d, accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY This case stems from Plaintiff-Appellant Demahy’s use o f 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 right s t o 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 requi r e d t h a t metoclopramide’s label be updated to include a warning about the ris k o f tardive dyskinesia, an often irreversible neurological disorder, and Actavis updated its label to include these warnings. In 2004, the FDA approved the n ame-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 ) ( q u o ting Physician’s Desk Reference 2902 (65th ed. 2011)). On April 28, 200 8 , D e mahy 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

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d e v e l o p t a r d iv e dyskinesia. On June 2, 2008, the Defendants-Appellees removed the case to the Eastern District of Louisiana based on diversity of citizenship. 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 o f Civil Procedure 12(b)(6), arguing that all of Demahy’s claims were pree mpted by federal law. The district court denied the motion on October 28, 2008, and on interlocutory appeal, this Court affirm e d t h e 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 t h i s Court’s decision, holding that state laws that would r e q u ire generic manufacturers to change a d r ug’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 lab e l s , state laws requiring generic metoclopramide manufacturers to attach a safer label to their product are preempted b y t h e f e d e r al 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 b e p r e - 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 Co u r t , a n d t his Court remanded the case to the district court with instructions to enter judgment in favor of Actav i s
. On August 30, 2011, the district court entered judgment in favor of Actavis and dismissed Demahy’s suit with prejudice.

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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), requ e s t i n g t h at the district court grant her relief from its July 28, 2008 order dismissing Wyeth and Schwarz. Second, on September 29, 2011, Demahy fil e d a m o t ion 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 th a t t h e mandate of this Court instructed dismissal of all of Demahy’s claims and entry of judgment in favor of Act a v i s , a nd 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 adenial 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. 201 0). 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 de n i a l of her Rule 60(b)(5) motion to reinstate her claims against Wyeth and Schwa r z , D emahy argues that she should be granted relief because the Mensing decision significantly altered case law providing that name-brand manufacturers could no t b e h e ld liable for damages suffered from using a generic manufacturer’s products. With respect to her Rule 59(e) motion, Demahy a r g u e s t h at the district court incorrectly

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interpreted this Court’s mandate directing dismissal of Demahy ’ s c l a i m s against Actavis, and thus erred in d enying Demahy’s motion to amend the court’s judgment of dismissal. We consider Demahy’s arguments in turn. 1. Claims Against Wyeth and Schwarz (Name-Brand Defendants) 1 Because it was fil e d w i t h i n t h e r e l e vant 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
t h e movant presents newly discovered evidence that was previously u n av a i l ab l e ;

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

It is nota b l e t h a t, altho ugh De mah y’s clai ms agains t Wyeth and Schw arz we re 1 dis mi ss ed wi thou t pr ejudi ce, thus giving the dis tri ct cour t juris dic tio n over and pow er to mo dif y its ord er of dis mi ss al until a fina l judgm ent wa s iss ued, see Stoff el s v. SBC Com mc ’ns, Inc. , 677 F.3d 720, 726–728 (5t h Cir. 2012) , this Court has juris dic tio n over the clai ms beca use we find that they we re subject to the fina l judgm ent iss ued by the dis tri ct cour t on August 30, 2011 fol low ing rem and fr om this Court

. Wyeth and Schw arz are not sp ecif ical ly m enti oned in the actual entry of judgment , but in cir cum st ance s in wh ich a cour t ord er is amb iguous as to wh at par tie s and clai ms are being dis pos ed of, and wh ere “ t h e dis tri ct cour t clea rly inte nd[ ed] to eff

ect a fina l dis mi ss al of a clai m, we wi ll cons tru e its ord er acc ord ingly, des pit e amb iguous language that mi ght indi cat e othe rw ise .” Pic co v. Gl oba l Ma ri ne Dr il li ng Co. , 900 F.2d846 , 849 n.4 (5t h Cir

. 1990)

. A mo tio n ask ing the cour t to rec ons ide r a pr ior rulin g is evaluat ed eit her as a mo tio n 2 to “alt er or ame nd a j u d g me nt” unde r Rule 59(e ) or as a mo tio n for “re lief fr om a fina l j udgm ent, ord er, or pr oce edi ng” unde r Rule 60(b ). The rule unde r wh ich the m o t i o n i s cons ide red is bas ed o n w hen the mo tio n wa s fil ed. Tex as A&M Res ea rch Found. v. Ma gna Tra nsp ., Inc. , 338 F.3d394 , 400 (5t h Cir

. 2003) . If the mot ion w as f iledwit hin tw enty- eight days afte r the ent ry of the judgm ent, the motio n is treat ed as thou gh it wa s filed under Rule 59, and if it wa s fil ed outs ide of that tim e, it is analyzed unde r Rule 60. Id

. He re, the rele vant mo tio n was filedwit hin the ap pli cable twe nty- eight d ay time fr ame , and w e thus cons ide r it
as a m oti on to ame nd the judgm ent unde r Rule 59(e ).

Becaus e the dis tri ct cour t, in denyi ng De mah y’s 60(b )( 5 ) mo tio n, reli ed on the 3
man dat e fr om this Court , it wo uld als o be pos sib le to revie w the dis tri c t c o urt ’s dis mi ss al unde r the mandat e rule , as disc uss ed below wi th res pec t to the clai ms agains t Acta vis. This dis tinc tio n is inco nse quent ial, how ever, sin ce the test fo r dec idi ng wh ethe r a cour t may devia te fr om a man dat e is the sam e as the tes t for ame ndin g a judgm ent unde r Rule 59(e ). See Uni ted States v. Ma tthew s , 312 F.3d 652, 657 (5t h Cir. 2002) (d es cri bing sam e thr ee sc enar ios unde r 5 Case: 11-31073 Document: 00512032444 Page: 5 Date Filed: 10/25/2012No. 11-31073

to raise arguments or claims “that could, and should, have been made before the judgment issued.” Marseilles Homeowners Condo. Ass’n v. Fidelity Nat. Ins. Co. , 542 F.3d 1053, 1058 (5th Cir. 20 08). The only ground fo r a m e nding 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, st a t i n g 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, r e c o v ery 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 Louisia n a c a s e l a w , D e m ah y ’ s c laims against Wyeth and Schwarz fail because they did not manufacture the medication she actually c onsumed. 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

wh ich dep art ure fr om m andat e i s per mi ss ible)

. De mah y argues that the LPLA, wh ich pr ovide s thata man ufac tur er is “a per so n or 4 enti ty wh o is in the bus ines s of man ufa c t u r i n g a p rod uct for plac em ent into tra de or com me rce ,” La. Rev. Sta t. Ann. § 9:28 00.5 3, doe s not app ly to her clai ms beca use Wyeth and Schw arz are not “m anuf act urer s, ” given that t h e y h a v e no conne cti on to the pr oduc t she act ually cons ume d. This argum ent is unavaili ng. The vast majo rit y of d e c i s i ons have held that the LPLA broa dly app lies to all sui ts involving injurie s fr om pr oduc ts , and thes e dec isi ons rejec ted the argum ent that com mo n law tor t clai ms can st ill be brou ght for injurie s st em mi ng fr om pr oduc ts unde r fac ts near ly ide ntic al to those in the curren t cas e. See Cooper v. Wye th , No. 09-CV- 929, 2010 WL 4318816 , at *2 (M .D

. La. Oc t. 26, 2010) ; Johns on v. TEV A Phar ma
. USA, Inc. , No. 2:10 -CV- 404, 2010 WL 327 1934, at *1–3 (W. D. La. Aug. 16, 2010) ; Craig v. Pfi ze r , No. 3:10 -002 27, 2010 WL 2649545 , at *2–4 (W. D. La. May 2 6 , 2 0 10); Was hington v. Wye th, Inc. , N o
. 3 : 0 9

- C V-013 43, 2010 WL 450351, at *2 (W. D. La. Feb. 8, 2010) ; Mo rri s v. 6 Case: 11-31073 Document: 00512032444 Page: 6 Date Filed: 10/25/2012No. 11-31073

In de c i d i n g whether an amendment to the judgment is warranted, we must therefore determine whether the dec i s i on in Mensing altered Louisiana tort law as it applies to the claims against Wyeth and Schwarz. Demahy argues t h a t L o uisiana cases holding that her claims against name-br a n d m a n u f a c t u r e r s cannot be bro u g h t h a v e been overruled by the Supreme Court’s decision in Mensing

. According to Demahy, Me n s i ng u n d ermined 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 Fosterand other cases). I n Foster , the Fourth Circuit, construing Maryland law, rejecte d t h e argument “that a name brand manufacturer’s statements regarding its drug can

serve as the basis for liabi l i t y f o r 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 no t e x t e n d to third parties. Id. at 171. The court a l s o s t a ted in dicta that plaintiffs could sue the generic manufacturers who the court believed were “a lso permitted to add or strengthen warnings and delete misleading statements on labels, even without

Wye th, Inc. , No. 09-0 854, 2009 W L 4 0 6 4 1 03, at *2–5 (W. D. La. Nov. 23, 2009) ; Lebl anc v. Wye th, Inc. , No. Civ.A.04 -061 1, 2006 WL 288303 0, at *3– 6 (W. D. La. Oc t. 5, 2006) ; Tar ve r v. Wye th, Inc. , No. Civ. A.3- 04-2 036, 200 6 W L 151 7546, at *2 –3 ( W.D

. La. Jan. 26, 200 6). In one nota ble excep tio n, a Louis iana Court of App eals st ated in a foo tnot e that a negligent mi sr epr es enta tio n clai m brou ght agains t a non- man ufac tur ing nam e brand is not cover ed by the LPLA

. S ta n le y v. Wye th, Inc. , 991 So. 2d 31, 33 n.2 (La. App

. 1 Cir. 2008)

. None thel es s, the cour t rejec ted the clai m unde r genera l tor t law on the grounds that ther e is
no dut y of care ow ed by nam e-b rand man ufac tur ers to consum ers of generic prod uct s. Id

. at 32–35. Alth o ugh we need not reac h the iss ue, this cas e illus tra tes the fac t that , unde r this view , even if the LPLA did not app ly, De mah y’s tor t clai ms wo uld fai l sin ce Wyeth and Schw arz did not man ufac tur e the g e n e r i c pr oduc t giving ris e to De mah y’s clai ms , and thus
ow ed De mah y no dut y of car e. A num ber of fed eral dis tri ct cour t dec isi ons app lying Louis iana st ate law have held the sam e. See, e. g., Johns on , 2010 WL 3271934 , at *1–3; Craig , 2010 WL 2649545 , at *2–4; Tar ve r , 2006 WL 1 517546, at *2 –3. 7 Case: 11-31073 Document: 00512032444 Page: 7 Date Filed: 10/25/2012No. 11-31073

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 failure-to-warn claims against generic manufacturers are preempted on impossibility grounds. 131 S. Ct. at 2577–78. According to D e m ahy, 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 a b i l i t y 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 t his fact does not impose on name-brand manufacturers a duty of care to customers using generic products. Likewise, dec isions 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 o n 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 Fosterwould 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 c u rrently exists[] and
may not change that law or adopt innovative theories of re c o v e r y”). Thus,

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because the Supreme Court’s decision in Mensing had no effect on Louisiana 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 a r g ues 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 ordin a r i l y “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 , 6 57 ( 5 th Cir. 2002) (quotation marks omitted). The “mandate rule” is a “ s p e c i f i c application of the general doctrine of law o f the case.” Id

. It “provides that a l o w e r court on remand must implement both the letter and the spirit of t h e appellate court’s mandate and may not disregard the explicit directives of that

c o urt.” Id

. (quotation marks omitted); see also LULAC v. City of Boerne , 67 5 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 t h e s a m e e x c eptions: “(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) t h e e a r l i e r decision is clearly

e r r oneous and would work a manifest injustice.” Id

. at 657. I n t h e s e 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

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failure to warn claims that required a manufacturer to provide a warning that

was different or in addition to the warnings appearing in the label for the brandname version of the drug.” Br. of Pl.-Ap p ellant Julie Demahy at 16 (Feb. 6, 2012) [hereinafter Appellant Br.]. S h e t h e refore 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). Conseq u e n t l y , she argues that “the district court committed 5 reversible error when i t d i s m issed 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 o f D ef. Actavis Inc. at 1, Demahy v. W

y e t h Inc. , 2011 WL 5056987 (E.D. La. Oct. 14, 2011) (No. 0 8-3616) (emphasis added). The district court granted Actavis’s motion as t o Demahy’s fraud-on-the-FDA claim, but deni e d i t a s t o h e r f a i l u r e - t o - w a r n c laims. 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 r eversed, 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 ( 5 t h Cir. 2011). Accordingly, the district

Acco rd ing to De mah y, thos e “ot her clai ms ” are “( 1) fai lure to wa rn clai ms that did not 5 requ ire the man ufac tur er to add to or dif fer its wa rnings fr om thos e app eari ng in the label of its brand -nam e count erp art ; (2) clai ms a r i sin g unde r the LPLA for man ufac tur ing def ect , des ign def

ect , and brea ch of expr es s wa rra ntie s; (3) clai ms unde r the [Lou isi ana Unf air Trad e Prac tic es Ac t] ; and (4) ot her clai ms ar isi ng f rom t rad itio nal tor t conc ept s[ .] ” Id. at 16– 17. 10 Case: 11-31073 Document: 00512032444 Page: 10 Date Filed: 10/25/2012No. 11-31073

court granted “judgment in fav o r o f D efendant, Actavis, Inc. and against Plaintiff, Julie De m a h y, 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 th e mandate addressed only her failure-to-warn

c l a ims, 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-wa r n claims, that is

s i mply because, at the time this Court issued the mandate, Demahy’s o n l y 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 a l l o w ing 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 co m plied, and entered judgment in favor of Actavis on those claims, Demahy had no claims remai n i n g because the district court had previously granted Actavis’s m o t i on to dismiss her fraud-on-the-FDA claims. With no claims r e m a i ning 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 cor r e c t i n both dismissing Demahy’s claims against Actavis and denying her Rule 59(e) motion. S i n c e w e hold that the mandate was not in error and the district court correctly followed the mandate, we need n o t 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,

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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. S ince her express warranty claim names only Wyeth, the only possible non-failure-to-warn claim Demahy has stated against Actavis is for d e s i g n d efect. Post- Mensing , however, a seeming majority of f e d eral district courts to consider other state-law tort claims have found t h e m 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., Co o p e r 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

We may “re call or ref

orm ” a pr evious man dat e “to pr event injus tic e.” Na t’l Sur. Corp

. 6

v. Char le s Carte r & Co. , 621 F.2 d 7 3 9 , 741 (5t h Cir. 1980) ; see al so 5th Cir. R. 41.2 , (“ On ce is s u e d a man dat e wi ll not be rec alled excep t to pr event injus tic e.” ). If the Court find s that De mah y has viable cl aim s that survive Me nsi ng , and that it wo uld work injus tic e to prevent thos e clai ms fr om being hear d, it coul d ref orm the pr evio u s l y - iss ued man dat e to dir ect the dis tri ct cour t to heart hos e c laim s. See, e. g., Stray horn v. Wye th Phar m. , Inc. , 2012 WL 3261377 , at *14 (W. D. Tenn. Aug. 7 8, 2012) ; Me tz v. Wye th LLC, No. 8:10 -CV- 2658- T-27AEP, 2012 WL 1058870 , at *2–7 (M .D

. Fla. Mar

. 28, 2012) ; Mo retti v. PLIVA, Inc. , No. 2:08 -CV- 00396- JCM, 2012 WL 628502, at *5–6 (D

. Nev. Feb. 27, 2012); Mo rri s v. Wye th, Inc. , No. 09-0 854, 2012 WL 601455, at *5 (W. D. La. Feb. 23, 2012) ; Bartol i v. APP Phar ms ., Inc. (In re Pam idr onate Prods

. Lia b. Lit ig
. ) , 842 F. Sup p. 2d 479, 485 (E. D. N. Y. 2012) ; Gr oss v
. P f i ze r, Inc. , 825 F. Sup p. 2d 654, 658 (D

. Md

. 2012) ; De l Va ll e v. PLIVA, Inc. , No. B : 1 1 -113 , 2011 WL 7168620 , at *5 (S .D

. Tex. De c. 21, 2011) ; Full ington v. PLIVA, Inc. , No. 4:10 -CV- 00236- JLH , 2011 WL 6153608 , at *5 (E. D. Ark

. De c. 12, 201 1). See, e. g., Auc oin v. Am nea l Phar ma ., LLC, No. 11–1275 , 2012 WL 2990697 , at *9 (E. D. 8 La. July 20, 20 1 2 ) ; Johns on v. Tev a Phar m. USA, Inc. , No. 2:10 -CV- 404, 2012 WL 1866839 , at *4 (W. D. La. May 21, 2012) ; Eckha rdt v
. Q u a l i te st Phar m. Inc. , No. M- 11-2 35, 2012 WL 1511817 , at *7 (S .D

. Tex. Apr. 30, 2012) ; Steve ns v. Pli va, Inc. , No. 6:10 -088 6 , 2 0 1 1 WL 6224569 , at *2 (W. D. La. N ov. 15, 2011)

. 12 Case: 11-31073 Document: 00512032444 Page: 12 Date Filed: 10/25/2012No. 11-31073

manufacturers, including design defect claims, are p r e e mpted after Mensing

. Thus, although unnecessary for the disposition of this cas e , we are persuaded that Demahy’s design defect claim would be preempted. CONCLUSION For the foregoing reason s , we AFFIRM the district court’s denial of Demahy’s motion to set aside judgment as to Actavis and her mo t i o n f or relief from judgment as to Wyeth and Schwarz. AFFIRMED.

13 Case: 11-31073 Document: 00512032444 Page: 13 Date Filed: 10/25/2012