Mary Karen Moretti v. Mutual Pharmaceutical Company, Inc. and Actavis-Elizabeth, LLC

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2380
___________________________
Mary Karen Moretti
lllllllllllllllllllll Plaintiff - Appellant
v.
Mutual Pharmaceutical Company, Inc.
and Actavis-Elizabeth, LLC
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: December 13, 2012
Filed: June 21, 2013
[Unpublished]
____________
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
____________
PER CURIAM.
Mary Karen Moretti, a citizen of Nevada, alleges that she was injured by the
prescription medication metoclopramide, which is available in both generic forms and
under the brand name Reglan. Moretti filed suit in federal court, alleging various
causes of action against Mutual Pharmaceutical Company, Inc. (Mutual), and

-- 1 of 4 --

Actavis-Elizabeth, LLC (Actavis), the makers of the generic drug Moretti took.
Moretti appeals from the district court’s adverse grant of judgment on the pleadings.1
We affirm.
In May 2003, Moretti was prescribed Reglan to treat her gastrointestinal
disorders. From August 2003 to April 2004, Moretti ingested the generic version of
Reglan manufactured by Mutual and Actavis. Moretti alleges that she developed the
neurological movement disorder tardive dyskinesia as a result of her taking the drug.
She faults Mutual and Actavis for not adequately informing her and her physician of
the known risks associated with long-term metoclopramide use.
Moretti filed this action in March 2010, asserting the following common law
claims for relief against Mutual and Actavis: negligence, misrepresentation by
omission, constructive fraud, negligent infliction of emotional distress, negligent
misrepresentation, and fraud by concealment. Moretti also alleged claims under
Minnesota’s and Nevada’s deceptive trade practice acts, as well as under Minnesota’s
false statement in advertising act and consumer fraud act. After Mutual and Actavis
answered the complaint, the district court granted their motion to stay proceedings
pending the Supreme Court’s determination of “whether federal drug regulations
applicable to generic drug manufacturers directly conflict with, and thus pre-empt,
[certain state law] claims.” Pliva, Inc. v. Mensing, 131 S. Ct. 2567, 2572 (2011).
The Supreme Court issued its decision in Mensing in June 2011, holding that
federal law preempts “state tort-law claims based on certain drug manufacturers’
alleged failure to provide adequate warning labels for generic metoclopramide.” 131
S. Ct. at 2582. Thereafter, the district court lifted the stay in Moretti’s case to allow
the parties to file pre-discovery dispositive motions.
The Honorable Michael J. Davis, Chief Judge, United States District Court for1
the District of Minnesota.
-2-

-- 2 of 4 --

Mutual and Actavis moved for judgment on the pleadings, arguing that
Moretti’s claims were virtually identical to Mensing’s and thus were foreclosed by
the Supreme Court’s decision. In response, Moretti argued that Mensing decided
only that failure to warn claims were preempted and that she had alleged other
theories of liability. The district court concluded that “the essence of these claims is
that important safety information as to metoclopramide was not disseminated, or
made clear, to the public or to the medical community. In other words, Defendants
failed to warn of material safety information concerning metoclopramide.” D. Ct.
Order of Feb. 13, 2012, at 11. The district court granted the motion and dismissed the
case with prejudice.
Having reviewed de novo the district court’s grant of judgment on the
pleadings, see Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)
(standard of review), we conclude that Moretti’s claims are foreclosed by the
Supreme Court’s decision in Mensing. The district court accurately characterized
Moretti’s complaint as alleging only failure to warn claims, and we have rejected as
unduly narrow Moretti’s view that Mensing preempts only “allegations that a generic
manufacturer should have unilaterally changed the content of its metoclopramide
label[.]” Appellant’s Br. 12; see Bell v. Pfizer, Inc., No. 12-1674, slip op. at 10-11
(8th Cir. June 14, 2013) (quoting identical language from Bell’s appellate brief and
holding that the plaintiff’s failure to warn claims were preempted under Mensing).
Although Moretti contends that Mensing did not decide whether federal law preempts
state law claims of strict liability and breach of warranty, Moretti pled no such claims
in her complaint.
To the extent that Moretti argues that her injuries were caused by the
manufacturers’ failure to implement changes to the metoclopramide label that the
Food and Drug Administration had approved for Reglan in 2003 and 2004, she did
not raise this argument before the district court and thus we will not consider it. See
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that
-3-

-- 3 of 4 --

a federal appellate court does not consider an issue not passed upon below.”). Mutual
and Actavis’s motion to strike the argument is denied as moot.
The judgment is affirmed.
______________________________
-4-

-- 4 of 4 --