Failure-To-Update Claims in Generic Zithromax Case Not Preempted, Del. Judge Rules

WILMINGTON, Del. — A Delaware judge has denied Teva Pharmaceuticals USA Inc.’s motion for judgment on the pleadings in an azithromycin action, ruling that the warning claims are not federally preempted because Teva could fulfill its duty under federal law to update its label while meeting its state law duty to warn consumers.

On May 25, Judge Jan R. Jurden of the Delaware Superior Court concluded that the plaintiffs’ state law failure-to-update claims are not preempted under Mensing and Bartlett.

Plaintiffs allege that Jonathan Boros was injured and died as a result of ingesting either Pfizer’s brand name azithromycin drug …