Negligent Design Claims Against Generic Fosamax Makers Preempted, 3rd Cir. Affirms

PHILADELPHIA — Strict liability negligent design claims brought against the makers of generic Fosamax (alendronate sodium) are preempted, the 3rd Circuit U.S. Court of Appeals has affirmed, explaining that such claims would require the drug makers to alter the design of their product, which federal law bars them from doing.

In an April 30 opinion, the appellate court found the plaintiffs have failed to identify anything the generic defendants could do to reconcile their conflicting duties under state and federal law.

In February 2011, 91 plaintiffs who are citizens of 28 different states sued Merck and various generic drug makers …