Breach of Warranty Claims in Generic Dilatin Case Preempted, N.Y. Magistrate Judge Says

BUFFALO, N.Y. - A New York federal judge has recommended dismissal of breach of warranty claims levied against the manufacturer of a generic equivalent of the anticonvulsant drug Dilatin, finding they are preempted because they would require the drug maker to change its label and issue new warnings, in contravention of federal law.

In a Jan. 30 report and recommendation, Magistrate Judge Leslie G. Foschio of the U.S. District Court for the Western District of New York found the plaintiff's breach of warranty claims sounded in failure to warn and, as such, are preempted pursuant to PLIVA v. Mensing.

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