‘Failure to Update’ Claims in Generic Fosamax Case Not Preempted, Fla. Federal Judge Rules

MIAMI — A Florida federal judge has allowed a plaintiff to amend her claims accusing Teva Pharmaceuticals of failing to update its generic Fosamax label in accordance with a 2004 FDA mandate, explaining that such claims would escape Teva’s preemption defense if adequately pled.

However, in the Nov. 30 order, Judge Beth Bloom of the U.S. District Court for the Southern District of Florida dismissed the plaintiff’s design defect claim with prejudice, finding it is preempted because it would require Teva to deviate from the brand name drug’s FDA-approved design.

Anita Allbright took generic Fosamax (alendronate) from 2009 until January …