Recently, the Sixth Circuit Court of Appeals gave a temporary victory to drug manufacturers when it upheld a motion to dismiss the plaintiffs' case, stating that they had not met the necessary elements to survive the motion.
In In re Darvocet, Darvon, and Propoxyphene Products Liability Litigation, the plaintiffs sought to hold Darvocet's manufacturer, Eli Lilly and Company, responsible for damage caused by the generic drug based on a misrepresentation legal theory. The painkiller Darvocet was first patented in 1957, and other manufacturers began to market generic versions after 1984. Darvocet had a troubled history, having been withdrawn from the UK market in 2005. The federal Food and Drug Administration (FDA) eventually requested that it be removed from U.S. markets in 2010. The plaintiffs in In re Darvocet claimed to have ingested Darvocet shortly before the FDA's request. They argued that manufacturers continued to market generic Darvocet even after they knew or should have known that the risks of the drugs exceeded their benefits. The plaintiffs sought to hold one or more brand names responsible, alleging that the brand name manufacturers made misrepresentations that led the plaintiffs' physicians to prescribe generic versions of Darvocet.
The United States Supreme Court then issued a ruling in Mutual Pharmacy Co. v. Bartlett (2013) that state design defect claims based on the adequacy of the drug's warnings were preempted by federal law. Included was a footnote that stated that this ruling did not address state design defect claims that "parallel" the federal misbranding statute. The plaintiffs in In re Darvocet therefore brought their claims against the brand name manufacturers based on the theory of parallel misbranding.