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On January 24, 2010, the Ninth Circuit Court of Appeals joined the Fifth and Eighth Circuits, in extending the Supreme Court's decision in Wyeth v. Levine to state law failure-to-warn claims against makers of generic drugs. The Ninth Circuit held such state law claims are not preempted by federal law. (Gaeta v. Perrigo Pharmaceuticals Co., 9th Cir., No. 05-04115, 1/24/11).
Margarita Gaeta filed suit on behalf of her minor child, A.G., against Perrigo and several other manufacturers of generic ibuprofen, after her son suffered complications and eventually required a liver transplant, resulting from his use of ibuprofen after a minor surgery during which he was given an anesthetic known to be hepatotoxic. The Gaetas argued that the generic manufacturers failed to warn prescribing physicians and consumers of the increased risk of acute liver injury and renal failure when ibuprofen is taken concurrently with drugs known to be hepatotoxic.
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