Civil Procedure Keyed to Marcus
Merrell Dow Pharmaceuticals, Inc. v. Thompson
In the complaints, five of the six counts alleged common-law theories of negligence, breach of warranty, strict liability, fraud and gross negligence. However, in count four, Respondents alleged that the drug Bendectin was misbranded in violation of the Federal Food, Drug and Cosmetic Act (Act) because its labeling did not provide adequate warning that its use was potentially dangerous. The Petitioner sought removal to federal district court, in part, upon the ground that the claims arose under the federal laws of the United States. After removal, the cases were consolidated. The district court found a cause of action arising under the federal laws, but the United States Court of Appeals for the Sixth Circuit reversed, noting that the Act does not create or imply a private right of action for individuals injured as a result of violations of the act.
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