STORY FROM: Drugs & Medical Devices

9th Cir. Reinstates Incretin Mimetic MDL, Says Failure-To-Warn Claims Not Preempted Under Buckman

SAN FRANCISCO — A federal appeals court has reinstated the multidistrict litigation for incretin mimetic type 2 diabetes drugs, finding the presiding judge misapplied U.S. Supreme Court law in ruling that the plaintiffs’ allegations constituted “fraud-on-the-FDA” claims that are preempted by Buckman v. Plaintiffs’ Legal Committee.

In a Dec. 6 opinion, the 9th Circuit U.S. Court of Appeals found the plaintiffs’ claims were based upon a state-law requirement that imposes a duty on drug makers to warn the FDA, which parallels federal requirements. As such, the claims are not preempted, the appellate court found.

Plaintiffs allege they developed pancreatic cancer ...

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