Gayle Dietrich and William H. Dietrich v. Actavis, Inc., Actavis Elizabeth, LLC; Actavis Mid-Atlantic LLC and Pliva, Inc.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2014 GAYLE DIETRICH and WILLIAM H. DIETRICH, Appellants, v. ACTAVIS, INC.; ACTAVIS ELIZABETH, LLC; ACTAVIS MID-ATLANTIC, LLC; and PLIVA, INC., Appellees. No. 4D12-4589 [May 21, 2014] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Robin Rosenberg, Judge; L.T. Case No. 502009CA021586 XXXXMB. David J. Sales of David J. Sales, P.A., Jupiter, for appellants. Richard A. Dean of Tucker Ellis LLP, Cleveland, Ohio, and Ethen R. Shapiro of Hill Ward Henderson, P.A., Tampa, for appellees Actavis, Inc., Actavis Elizabeth, LLC, and Actavis Mid-Atlantic, LLC. Rex A. Littrell of Ulmer & Berne LLP, Columbus, Ohio, Jeffrey F. Peck of Ulmer & Berne LLP, Cincinnati, Ohio, and Steven J. Rothman of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee PLIVA, Inc. PER CURIAM. Affirmed. See PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011) (holding federal law prevents a generic drug manufacturer from independently changing its safety labels to provide additional warnings); Morris v. PLIVA, Inc., 713 F.3d 774, 777 (5th Cir. 2013) (extending Mensing s holding so as to foreclose state tort claims based on a generic drug manufacturer s failure to communicate approved label changes in a manner that the name brand manufacturer had not, i.e., Dear Doctor letters); Guarino v. Wyeth, LLC, 719 F.3d 1245, 1249 (11th Cir. 2013) (agreeing with the Fifth Circuit s reasoning in Morris, and holding a generic drug manufacturer s failure to communicate approved label changes is preempted under federal law); but see Brasley-Thrash v. Teva Pharm. USA, Inc., No. Civ. A. 10-00031-KD-N, 2011 WL 4025734, at *3 (S.D. Ala. Sept. 12, 2011) (holding Mensing does not prevent a generic drug manufacturer from sending out a letter that simply reiterates warnings contained in the approved label ). We find the reasoning and holding stated in Morris and Guarino to be most consistent with the Supreme Court s ruling in Mensing. STEVENSON, CONNER and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2
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