At least, that’s what blog reader Geoff Klingsporn over at Davis, Graham just told us about our new Conte/generic drug non-liability scorecard. We’re not offended, because the reason for our falling short is the best, a new decision – from West Virginia this time – throwing out yet another attempt by a plaintiff to hold a branded drug manufacturer liable for a supposed labeling defect in a generic drug it never made. The new case is Meade v. Parsley, C.A. No. 2:09 -cv-00388, slip op. (S.D.W. Va. Nov. 13, 2009). The best part of Meade? It’s explicit rejection of Conte, of course:
So far, Conte, which recognized but declined to follow Foster, is the only decision in several like actions that has allowed the plaintiff to proceed against [a brand-name defendant] when only the generic version of the drug was ingested. . . . Inasmuch as the remaining claims against [the brand-name defendants] require a duty of care to the plaintiffs or proximate cause, summary judgment is proper as to [them].
Slip. op. at 9 (discussion of Foster omitted).
Keep it up guys. We hope Conte gains even less traction than New Jersey’s oft-rejected DTC exception to the learned intermediary rule.