Tom Cullen, Kali Book and Ryan Cullen obtained a dismissal of a product liability action on behalf of a pharmaceutical manufacturing company in the District Court of the Fourth Judicial District of the State of Idaho, County of Ada.
The plaintiffs alleged that the drug manufacturer failed to provide adequate warning of a side effect of a generic drug that was prescribed off-label by doctors to the patient to delay her pre-term pregnancy labor. The plaintiffs claimed that exposure to terbutaline in utero caused the patient’s minor child to suffer cognitive injuries, including autism spectrum disorder.
The "failure to warn" allegations, according to the plaintiffs, established liability against the generic drug manufacturer under state tort law for fraud, intentional infliction of emotional distress and negligent infliction of emotional distress. The generic drug manufacturer moved to dismiss the claims because the plaintiffs had failed to specifically identify a manufacturer's product taken by the patient, and because all of the plaintiffs' claims were preempted by Mensing and Bartlett. The generic drug manufacturer argued that no amount of artful pleading – recasting a "failure to warn" claim into fraud, intentional infliction of emotional distress and negligent infliction of emotional distress claims – by the plaintiffs could shield their state tort claims from federal preemption law. The Honorable Judge Richard Greenwood granted the manufacturer’s motion to dismiss.