‘Failure to Update’ Claims Against Generic Fosamax Makers Not Preempted, N.Y. Federal Judge Rules

NEW YORK — “Failure to update” claims brought against the makers of generic Fosamax are not federally preempted because they could have, and in fact were legally required, to ensure that their labeling reflected FDA-approved warnings for the brand name drug, a New York federal judge has ruled.

However, Mutual Pharmaceutical Inc. v. Bartlett forecloses plaintiffs’ design defect claims because the generic manufacturers could not, under federal law, alter the chemical composition of their drugs, Judge John F. Keenan of the U.S. District Court for the Southern District of New York ruled Aug. 14.

Plaintiffs in this case allege Fosamax, …