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Appeals Court Says Defective Drug Lawsuit Not Preempted | cialis online

Appeals Court Says Defective Drug Lawsuit Not Preempted

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The 8th Circuit Court of Appeals has ruled that a defective drug lawsuit against Missouri-based KV Pharmaceutical and its Ethex Corp. division can go forward. The class action lawsuit alleges that consumers suffered economic damages because Ethex put adulterated drugs on the market.

The lawsuit stems from an Ethex generic drug recall issued in 2009. The suit was filed in April 2009 on behalf of Allen Lefaivre, a resident of Rhode Island, and other consumers of Metoprolol Succinate ER made by Ethex. According to the complaint, Lefaivre had a prescription for the drug, which he purchased several times at retail pharmacies in Rhode Island. The defective drug lawsuit, which sought economic damages for purchasing the medicine, was filed under Missouri’s Merchantability Practices Act, which deals with fraud and deceptive business practices.

In March 2009, Ethex stipulated in a federal consent decree that it had not used proper quality control procedures when making the hypertension medicine, Metoprolol Succinate ER, and that some of its tablets may have been oversized and delivered higher than labeled doses. The company also issued a recall for the tablets.

A lower court had dismissed the lawsuit, ruling that allowing it to go forward would interfere with the U.S. Food and Drug Administration’s (FDA) authority to regulate the manufacture and sale of prescription drugs. But the three-judge panel of the 8th Circuit ruled in Lefaivre’s favor, citing, among other things the U.S. Supreme Court’s Wyeth vs. Levine decision , and writing that the High Court’s comments regarding drugs and drug labeling “strongly imply that field preemption does not apply in the present case.”

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