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Design defect claim against generic drugmaker is not preempted, First Circuit holds

Matthew Malamud

The Supreme Court’s holding in Mensing does not extend to state law design defect claims against generic drugmakers, a three-judge panel of the First Circuit has held, affirming a $21 million jury award to a plaintiff who was injured by the generic anti-inflammatory drug sulindac. Louis Bograd, senior litigation counsel with the Center for Constitutional Litigation in Washington, D.C., said that while the decision is important, it is a limited exception to Mensing.

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