Jeff Pilkington and Geoff Klingsporn of Davis Graham & Stubbs contributed the following guest post noting the passage of one year since the Conte decision came down. Jeff and Geoff get all the credit for what follows; all we do is thank them for their work:

On November 7, 2008, a “grotesque chimera of product liability and misrepresentation [was] set loose to lumber across the California landscape.” One year later, the good news is that this frightening beast, more formally known as Conte v. Wyeth, 168 Cal. App. 4th 89 (Cal. Ct. App. 2008), has not been allowed to wander far.

In Conte, a California appellate court held that the manufacturer of name-brand Reglan® could be sued for injuries caused by a patient’s ingestion of metoclopramide, the generic version of that product. One might expect, therefore, that the initial impact of the decision would be in other cases involving Reglan® and metoclopramide.

But so far, no other court since Conte has bought this argument. In the past twelve months, seven courts have considered the issue, and each of the seven has declined to follow its reasoning or adopt its novel holding. These cases are:

Burke v. Wyeth, Inc., No. G-09-00082 (S.D. Tex. Oct. 7, 2009) (Froesschner, Mag. J.) (report and recommendation), adopted, (S.D. Tex. Oct. 29, 2009) (Hoyt, J.)Stoddard v. Wyeth, Inc., 630 F. Supp. 2d 631, 634 (E.D.N.C. June 24, 2009)Fields v. Wyeth, Inc., 613 F. Supp. 2d 1056 (W.D. Ark. 2009)Moretti v. Wyeth, Inc., No. 2:08-CV-00396-JCMGWF, 2009 WL 749532, at *3-*4 (D. Nev. Mar. 20, 2009)Schrock v. Wyeth, Inc., No. CIV 08-453-M, 2009 WL 635415, at *4-*5 (W.D. Okla. Mar. 11, 2009)Cousins v. Wyeth Pharm., Inc., No. Civ. A 3:08-CV-0310-N, 2009 WL 648703, at *2 (N.D. Tex. Mar. 10, 2009)Huck v. Trimark Physicians Group, No. LACV018947, Order at 1-2 (Iowa Dist. Ct. Feb. 27, 2009)(For those keeping score, this makes 31 courts in 19 states that have refused to impose liability on a brand name drug manufacturer for injuries caused by its competitors’ generic drugs.)

Some of these courts have been emphatic in rejecting Conte. The federal court in neighboring Nevada looked at the cases and concluded that “with the exception of Conte, every other court that has considered this issue has rejected Plaintiff’s arguments. Those courts have correctly held that brand name manufacturers do not have a legal duty to warn about the risks associated with their competitors’ generic drugs. Simply put, Conte stands alone and is contrary to Nevada law and public policy.” Moretti at *4.

Likewise, just in the past month the Eastern District of Texas dismissed “[t]he California court’s holding in Conte” as “anomalous.” Burke, Report and Recommendation at 6.

What explains the limited impact of Conte? First and foremost, the decision was simply bad law. It ignored decades of products liability jurisprudence – including the bedrock principle that liability for allegedly defective products rests with the company that profited from their sale and that controls their safety. The Conte court created a duty based on foreseeability alone, without giving proper weight to the social policy considerations flowing from such a duty. As noted on this blog at the time, “Conte is bad law and worse policy.”

Second, the Supreme Court’s post-Conte decision in Wyeth v. Levine removed the most significant incentive for courts after Conte to even consider stretching products liability so far out of shape: generic preemption. In Conte the generic manufacturer defendants had already been let out of the case on preemption grounds, which left the California court with an unappetizing prospect: if the brand name manufacturers weren’t liable for plaintiff’s injuries, then no one would be. After Levine, generic manufacturers are finding it much more difficult to win their preemption motions.

In fact, Conte’s lack of traction may make it more likely that courts will reject generic preemption: For instance, in Bartlett v. Mutual Pharmaceutical Co., a New Hampshire federal court cited “the widespread rejection” of innovator liability as another reason to deny preemption, since such “rejection supports the view that, if failure-to-warn claims against generic drug makers are indeed pre-empted, those injured as a result … have no recourse.” Slip op. at *25 n.40.

No doubt plaintiffs’ attorneys will keep arguing for innovator liability across the country – including in jurisdictions where such “innovator liability” was rejected before Conte, on the theory that the California decision undermines or unsettles prior law on this issue. But so far, no court has shown any inclination to agree. We will see what happens in another year.