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Wagner v. Teva Pharmaceuticals USA Inc.

United States Court of Appeals, Seventh Circuit

October 18, 2016

Kathleen A. Wagner, Plaintiff-Appellant,
v.
Teva Pharmaceuticals USA, Inc., et al., Defendants-Appellees.

          Argued February 12, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 13-CV-497-JDP - James D. Peterson, Judge.

          Before Wood, Chief Judge, Rovner, Circuit Judge, and Blakey, District Judge. [*]

          Blakey, District Judge.

         Appellant Kathleen Wagner appeals the decision of the district court granting judgment on the pleadings in favor of Appellees Teva Pharmaceuticals USA, Barr Pharmaceuticals and Barr Laboratories. For the reasons explained below, the decision of the district court is affirmed.

         I. Background & Procedural History

         Appellant Kathleen Wagner, who is a licensed attorney proceeding pro se, took both brand-name and generic hormone therapy drugs as prescribed by her gynecologist to treat her post-menopausal endometrial hyperplasia. After taking the drugs, Wagner developed breast cancer. Wagner sued multiple pharmaceutical companies that designed, manufactured, promoted and distributed the drugs she took. Appellees Teva Pharmaceuticals USA, Barr Pharmaceuticals and Barr Laboratories are the only pharmaceutical companies that manufactured the generic form of the hormone therapy drugs.

         In her 12-count First Amended Complaint, Wagner asserted numerous Wisconsin state law tort claims, all based upon allegations that Appellees sold dangerous products and failed to adequately warn of their risks.

         After answering the Amended Complaint, Appellees moved for Rule 12(c) judgment on the pleadings, arguing that federal law preempted Wagner's claims. In response, Wagner asserted, for the first time, that Appellees delayed updating their generic brand labels to match the updated, stricter labels on the brand-name drug.

         The District Judge granted the motion for judgment on the pleadings, finding that the Food, Drug, and Cosmetics Act (FDCA), 21 U.S.C. § 301 et seq., preempted Appellant's state law claims. Wagner appealed.

         II. Discussion

         We review de novo a district court's Rule 12(c) decision. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th Cir. 2014). To survive a motion for judgment on the pleadings, a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing a motion for judgment on the pleadings, we draw all reasonable inferences and facts in favor of the nonmovant, but need not accept as true any legal assertions. Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014).

         On appeal, Wagner raises two challenges. First, she argues that, given the passage of the Food and Drug Administration Amendments Act of 2007 (FDAAA), her claims are not preempted. Wagner also argues that her claims are not preempted to the extent they are based upon Appellees' failure to update their generic drug labels to match the updated label on the brand name drug. We address both issues in turn.

         A. Preemption ...


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