Regular blog readers know how we feel about Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), review denied (Cal. Jan. 21, 2009) – the case that held an innovator drug manufacturer potentially liable for “misrepresentations” even though it did not manufacture the drug that allegedly harmed the plaintiff. We criticized virtually every aspect of Conte here, here, here, and here. We gave Conte our nod as the worst judicial decision of 2008 in our field. Bexis wrote an amicus brief in support of the ultimately unsuccessful effort to get the California Supreme Court to review the Conte decision. In short, we thought Conte was bad news all around.
Last week we put up a guest post with some good news about Conte – in the year since it had been decided, no other court had found its reasoning to be persuasive. Our guest posters observed:
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.
We took that as a very subtle rebuke. It had to be subtle – it’s our blog, after all.
But they have a point. After all, isn’t keeping score one of the things we do? We maintain current scorecards on drug/vaccine preemption, medical device preemption, cross-jurisdictional class-action tolling (if you don’t know, don’t ask), and no present injury plaintiffs.
Well guys, it worked – you got us off our duffs. We haven’t put together a scorecard on a new topic in over a year, so that sounded like a good idea. What follows is a chronological list of every judicial decision we know of that addresses the issue of whether a innovator (also known as “pioneer,” “name brand,” or “listed”) drug manufacturer can be liable in a suit where the plaintiff only took a generic version of that drug, which was manufactured and marketed by somebody else.
- Foster v. American Home Products Corp., 29 F.3d 165, 168, 171 (4th Cir. July 14, 1994) (applying Maryland law). Promethazine (Phenergan) case. Innovator manufacturer not liable under negligent misrepresentation theory.
- Flynn v. American Home Products Corp., 627 N.W.2d 342, 350-52 (Minn. App. May 15, 2001). Fenfluramine (Pondimin) case. Innovator manufacturer not liable under fraudulent misrepresentation, negligent misrepresentation, or consumer fraud theories.
- Beutella v. A.H. Robins Co., 2001 WL 35669202, at *2-3 (Utah Dist. Dec. 10, 2001). Metoclopramide (Reglan) case. Innovator manufacturer not liable under any (unspecified) theory.
- DaCosta v. Novartis AG, 2002 WL 31957424, at *8-9 (D. Or. March 1, 2002). Ergot alkaloid (Migranal) case. Innovator manufacturer not liable under strict liability, or fraud theories.
- Block v. Wyeth, Inc., 2003 WL 203067, at *2 (N.D. Tex. Jan. 28, 2003). Metoclopramide (Reglan) case. Innovator manufacturer not liable under negligence, negligent misrepresentation, fraud, conspiracy, or malice theories.
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Murphy v. Aventis Pasteur, Inc., 270 F. Supp.2d 1368, 1377 (N.D. Ga. 2003). Generic thimerosal (thimerosal) case. No authority for innovator liability in negligence.
- Sloan v. Wyeth, 2004 WL 5767103, at *?? [most of the opinion] (N.J. Super L.D. Oct. 13, 2004). Metoclopramide (Reglan) case. Innovator manufacturer not liable under fraud, negligent misrepresentation, fraudulent concealment, or consumer fraud theories.
- Sheeks v. American Home Products Corp., 2004 WL 4056060, at *1-2 (Colo. Dist. Oct. 15, 2004). Metoclopramide (Reglan) case. Innovator manufacturer not liable under negligent misrepresentation or statutory products liability theories.
- Reynolds v. Anton, 2004 WL 5000272, at *?? [at end of opinion] (Ga. Super. Oct. 28, 2004) (Westlaw didn’t provide jump cites to state trial orders for a time, which ticks us off). Methylphenidate (Ritalin) case. Innovator manufacturer not liable under overpromotion or any other theory for failure of proximate causation.
- Kelly v. Wyeth-Ayerst Laboratories Co., 2005 WL 4056740, at *2-5 (Mass. Super. May 6, 2005). Metoclopramide (Reglan) case. Innovator manufacturer not liable under products liability, negligence, Restatement (Second) of Torts §323 (1965), negligent misrepresentation, breach of warranty, or consumer fraud.
- Tarver v. Wyeth, Inc., 2005 WL 4052382, at *2 (Mag. W.D. La. June 7, 2005), adopted, 2006 WL 1517546, at *2-3 (W.D. La. Jan. 26, 2006). Metoclopramide (Reglan) case. Innovator manufacturer not liable under statutory product liability or negligent misrepresentation theories.
- Sharp v. Leichus, 2006 WL 515532, at *2-6 (Fla. Cir. Feb. 17, 2006), aff’d per curiam, 952 So.2d 555 (Fla. App. Jan 22, 2007). Metoclopramide (Reglan) case. Innovator manufacturer not liable under fraud, negligent misrepresentation, fraudulent concealment, or market share theories.
- Possa v. Eli Lilly & Co., 2006 WL 6393160, at *1, slip op. at 2-3 (M.D. La. May 10, 2006). Fluoxetine (Prozac) case. Innovator manufacturer not liable under statutory product liability theory.
- Colacicco v. Apotex, Inc., 432 F. Supp.2d 514, 539-43 (E.D. Pa. May 25, 2006), aff’d on other grounds, 521 F.3d 253 (3d Cir. 2008), vacated on other grounds, 556 U.S. 1101 (2009). Paroxetine (Paxil) case. Innovator manufacturer not liable under all (negligence, negligence per se, negligent misrepresentation, fraud, consumer fraud, infliction of emotional distress, or implied warranty) theories for lack of duty or causation.
- Goldych v. Eli Lilly & Co., 66 Fed. R. Serv.3d 799, 2006 WL 2038436, at *3-8 (N.D.N.Y. July 19, 2006). Fluoxetine (Prozac) case. Innovator manufacturer not liable under negligence, negligent misrepresentation, fraud, fraudulent concealment, or consumer fraud theories.
- LeBlanc v. Wyeth, Inc., 2006 WL 2883030, at *5-6 (W.D. La. Oct. 5, 2006). Amiodarone (Cordarone) case. Innovator manufacturer not liable under statutory product liability theory.
- Adamson v. Ortho-McNeil Pharmaceutical, Inc., 463 F. Supp.2d 496, 505 (D.N.J. Nov. 16, 2006), reconsideration denied, 2007 WL 604790 (D.N.J. Feb. 20, 2007). TriNessa (Tri-Cyclen) non-personal injury case. Innovator manufacturer not liable under consumer fraud theory for not advertising that generic drug was available more cheaply.
- Rossi v. Hoffmann-LaRoche, 2007 WL 7632318, slip op. at 9-13 (N.J. Super. L.D. Jan. 3, 2007). Mefloquine (Lariam) case. Innovator manufacturer not liable to generic manufacturer in cross-claim under statutory product liability, consumer fraud, failure to warn, contribution, or indemnity.
- Barnhill v. Teva Pharmaceuticals USA, Inc., 2007 WL 5787186, at *2-3 (S.D. Ala. April 24, 2007). Cephalexin (Keflex) case. Innovator manufacturer not liable under Restatement (Second) of Torts §402B (1965), strict liability, negligence, failure to test, failure to train physicians, express warranty, or implied warranty theories.
- Green v. Wyeth Pharmaceuticals, Inc., 2007 WL 6428717, at *1 (Ala. Cir. May 14, 2007). Metoclopramide (Reglan) case. Innovator manufacturer not liable under any (unspecified) theory.
- Clark v. Pfizer, Inc., 2008 WL 7668730 (Pa. C.P. March 17, 2008). Gabapentin (Neurontin) non-personal injury case. Innovator manufacturer not liable under warranty theory. Name brand manufacturer could be liable under negligent misrepresentation or intentional misrepresentation theories for sums paid to generic manufacturers for off-label uses.
- Swicegood v. Pliva, Inc., 543 F. Supp.2d 1351, 1354-59 (N.D. Ga. April 2, 2008). Metoclopramide (Reglan) case. Innovator manufacturer not liable under strict liability, negligence, fraudulent misrepresentation, negligent misrepresentation, Restatement (Second) of Torts §324A (1965), concealment, or implied warranty theories.
- Pustejovsky v. Wyeth, Inc., 2008 WL 1314902, at *2 (N.D. Tex. April 3, 2008). Metoclopramide (Reglan) case. Innovator manufacturer not liable under statutory product liability, negligence, fraud, or misrepresentation theories. Affirmed on other grounds, 623 F.3d 271 (5th Cir. 2010).
- Stanley v. Wyeth, Inc., 991 So.2d 31, 33-35 (La. App. May 2, 2008). Amiodarone (Cordarone) case. Innovator manufacturer not liable under statutory product liability or negligent misrepresentation theories.
- Westerlund v. Wyeth, Inc., 2008 WL 5592753, at *3 (N.J. Super. Law Div. Oct. 20, 2008). Amiodarone (Cordarone) case. Innovator manufacturer not liable under statutory product liability or any other theory.
- Buchanan v. Wyeth Pharmaceuticals, Inc., 2008 WL 7136137, slip op. at 1 (Ala. Cir. Dale Co. October 20, 2008). Metoclopramide (Reglan) case. Innovator manufacturer not liable under any theory. .
- Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299, 309-311 (Cal. App. Nov. 7, 2008), review denied (Cal. Jan. 21, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under strict liability theory. Innovator manufacturer may be liable under negligent misrepresentation or fraudulent misrepresentation theories.
- Huck v. Trimark Physicians Group, 2009 WL 3760458, slip op. at 1-2 (Iowa Dist. Feb. 27, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under any (unspecified) theories. Affirmed see below.
- Cousins v. Wyeth Pharmaceutical, Inc., 2009 WL 648703, at *2 (N.D. Tex. March 10, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under any (unspecified) theories for lack of duty.
- Schrock v. Wyeth, Inc., 601 F. Supp.2d 1262, 1266 (W.D. Okla. March 11, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under any (unspecified) theory for failure of causation. Affirmed – see below.
- Moretti v. Wyeth, Inc., 2009 WL 749532, at *3-4 (D. Nev. March 20, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under Restatement (Second) of Torts §§310, 311, 323 (1965), misrepresentation by omission, constructive fraud, negligent misrepresentation, or fraudulent concealment theories. Conte rejected as contrary to law and policy. Affirmed see below.
- Short v. Eli Lilly & Co., 2009 WL 9867531, at *4-9, slip op. (Ind. Super. Marion Co. March 25, 2009). Fluoxetine (Prozac) case. Innovator manufacturer not liable under statutory product liability or misrepresentation theories. Conte rejected as contrary to law.
- Fields v. Wyeth, Inc., 613 F. Supp.2d 1056, 1060-61 (W.D. Ark. May 11, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under statutory product liability, strict liability, negligence, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, or implied warranty theories.
- Stoddard v. Wyeth, Inc., 630 F. Supp.2d 631, 633-34 (E.D.N.C. June 24, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under express warranty, implied warranty, negligence, negligent omission, negligent misrepresentation, negligent undertaking, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, or consumer fraud theories.
- Bartlett v. Mutual Pharmaceutical Co., 659 F. Supp.2d 279, 309 n.40 (D.N.H. Sept. 30, 2009). Sulindac case. Dictum recognizing “widespread rejection” of theories of “innovator liability.”
- Burke v. Wyeth, Inc., 2009 WL 3698480, at *2-3 (S.D. Tex. Oct. 29, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under statutory product liability, negligence, strict liability, implied warranty, misrepresentation, fraudulent concealment, consumer fraud, or gross negligence. Conte rejected as anomalous and contrary to law.
- Meade v. Parsley, 2009 WL 3806716, at *2-3 (slip op.) (S.D.W. Va. Nov. 13, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under strict liability, breach of express and implied warranties, negligence, misrepresentation, fraud, consumer fraud, or intentional infliction of emotional distress. Conte is considered and rejected.
- Morris v. Wyeth, Inc., 2009 WL 4064103, at *4-6 (slip op.) (W.D. La. Nov. 23, 2009). Metoclopramide (Reglan) case. Innovator manufacturer not liable under statutory product liability theory (within which all other causes of action are subsumed).
- Mensing v. Wyeth, Inc., 588 F.3d 603, 612-14 (8th Cir. Nov. 27, 2009) (affirming 2008 WL 4724286). Metoclopramide (Reglan) case. Innovator manufacturer not liable for various common law torts including negligent representation and fraud. Reaffirmed in pertinent part and vacated in part on other grounds, 658 F.3d 867 (8th Cir. Sept. 29, 2011).
- Dietrich v. Wyeth, Inc., 2009 WL 4924722, slip op. at 3-6 (Fla. Cir. 15th Cir. Dec. 21, 2009). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, strict liability, breach of warranties, misrepresentation and fraud, and negligence per se. Conte rejected as a “lone outlier against the overwhelming weight of authority.” Id. at 10.
- Levine v. Wyeth, Inc., 684 F. Supp.2d 1338, 1344-46 (M.D. Fla. Feb. 10, 2010), adopting magistrate’s report in Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, negligence per se, strict liability, breach of warranties, component part liability, misrepresentation and fraud. Conte rejected as “run[ning] counter to the overwhelming majority of case law.” Report at 7.
- Goodridge v. Pfizer Canada, Inc., 2010 ONSC 1095, slip op. (Ont. Super. Feb. 18, 2010). Gabapentin (Neurontin) case. Innovator manufacturers not liable for negligence under Canadian law where plaintiff only took generic drug. Other theories of liability are not recognized in Canada. American precedent not discussed. Paragraphs 62-105.
- Couick v. Wyeth, Inc., 691 F. Supp.2d 643, 645-46 (W.D.N.C. March 8, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, misrepresentation by omission, negligent misrepresentation, constructive fraud, fraud by concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, unfair and deceptive trade practices, or breach of express and implied warranties under North Carolina’s statutory product liability statute.
- Hardy v. Wyeth, Inc., 2010 WL 1049588, at *2-5 (Mag. E.D. Tex. March 8, 2010), adopted, 2010 WL 1222183 (E.D. Tex. Mar. 29, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable on any theory (unspecified). Conte rejected as “not persua[sive].”
- Howe v. Wyeth Inc., 2010 WL 1708857, at *3-4 (M.D. Fla. Apr. 26, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, strict liability, breach of warranties, fraud, and negligence per se. Following Levine v. Wyeth, above.
- Finnicum v. Wyeth, Inc., 708 F. Supp.2d 616, 620-22 (E.D. Tex. April 28, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, strict products liability, breach of warranty, fraud, and consumer fraud. Conte rejected as “stretch[ing] the concept of foreseeability too far.”
- Negron v. Teva Pharmaceuticals USA, Inc., 2010 WL 8357563, slip op. at 1-2 (Tex. Dist. Dallas Co. May 7, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable under any theory.
- Craig v. Pfizer, Inc., 2010 WL 2649545, at *2-4 (Mag. E.D. La. May 26, 2010), adopted, 2010 WL 2649544 (W.D. La. June 29, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable under statutory product liability, consumer fraud, breach of warranty, or fraud and misrepresentation.
- Phelps v. Wyeth, Inc., 2010 WL 2553619, at *2-3 (Mag. D. Or. May 28, 2010), adopted, 2010 WL 2553614 (D. Or. June 21, 2010). Metoclopramide (Reglan) case. Summary judgment granted. Innovator manufacturers not liable for negligence, strict liability, breach of warranties, misrepresentation and fraud, or gross negligence. Conte is “not persuasive.” Reconsideration denied, post-Mensing, slip op. at *3-5 (D. Or. Nov. 23, 2011). Foster remains good law after Mensing, there remains no basis for liability. Adopted a second time on the same grounds. 857 F. Supp.2d 1114, 1120-22 (D. Or. April 24, 2012) (also rejecting Conte).
- Mosley v. Wyeth, Inc., 719 F. Supp.2d 1340, 1345-51 (S.D. Ala. June 28, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligent misrepresentation, fraud, or warranty theories. Overruled by Weeks.
- Neal v. Teva Pharmaceuticals USA, Inc., 2010 WL 2640170, at *2 (W.D. Ark. July 1, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for statutory product liability, negligence, breach of warranties, express and implied, negligent and fraudulent misrepresentation, and gross negligence.
- Fisher v. Pelstring, 2010 WL 2998474, at *2-9 (D.S.C. July 28, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for strict liability, negligence, fraud, fraudulent concealment, constructive fraud, consumer fraud, misrepresentation, breach of express or implied warranty, breach of undertaking, or intentional infliction of emotional distress. Conte is in direct conflict with the weight of authority.
- Kellogg v. Wyeth, 762 F. Supp.2d 694, 705-08 (D. Vt. Oct. 20, 2010). Metoclopramide (Reglan) case. Innovator manufacturers can be liable under Vermont law for negligence or fraud, but not strict liability, where the prescribers testified they relied upon “drug manufacturers” for warnings, even though the plaintiff did not ingest a name brand drug.
- Cooper v. Wyeth, Inc., 2010 WL 4318816, at *2-3, slip op. (M.D. La. Oct. 26, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable under statutory product liability theory, and no other theories are recognized.
- Gross v. Pfizer, Inc., 2010 WL 4485774, at *2-3, slip op. (D. Md. Nov. 9, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, breach of warranty, strict product liability, and misrepresentation. Conte is a minority view and Maryland would not follow it. Reconsideration denied, 2011 WL 4005266 (D. Md. Sept. 7, 2011), Mensing does not require reconsideration, as there is no claim under Maryland law.
- Simpson v. Wyeth, Inc., 2010 WL 5485812, at *3-5 (N.D. Ala. Dec. 9, 2010). Metoclopramide (Reglan) case. Innovator manufacturers not liable for misrepresentation, fraud by concealment or suppression and failure to warn.
- Overton v. Wyeth, Inc., 2011 WL 1343392, at *6-7 (Mag. S.D. Ala. March 15, 2011), adopted, 2011 WL 1343391 (S.D. Ala. April 7, 2011). Metoclopramide (Reglan) case. Innovator manufacturers not liable for fraudulent or negligent misrepresentation, or breach of warranty.
- Smith v. Wyeth, Inc., 657 F.3d. 420, 423-24 (6th Cir. Sept. 22, 2011) (applying Kentucky law). Metoclopramide (Reglan) case. Innovator manufacturers not liable for fraud, fraudulent concealment, or tortious misrepresentation for failure to warn about risks of a product that did not cause the plaintiff’s injury. Just because a company is in the same business as a tortfeasor does not make it automatically liable for harm caused by that tortfeasor’s product. Rejecting Conte.
- Morris v. Wyeth, Inc., 2011 WL 4975317, at *3-4 (W.D. La. Oct. 19, 2011). Metoclopramide (Reglan) case. Mensing does not change Louisiana law which does not impose a duty upon an innovator drug manufacturer running to the consumer of a generic product that did not take the defendant’s drug. Barring claims for negligent misrepresentation under Louisiana common law.
- Metz v. Wyeth, Inc., 830 F. Supp.2d 1291, 1293-95 (M.D. Fla. Nov. 18, 2011). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence, strict liability, breach of warranty, misrepresentation, fraud, or negligence per se for failure to warn about risks of a product that did not cause the plaintiff’s injury. Foster remains good law, as preemption was hardly central to that court’s decision. Innovator manufacturers owe no duty of care to generic drug consumers. That generic claims may be preempted does does not compel a change in state law concerning innovator drugs. Affirmed by unpublished order, No. 12-13321, slip op. (11th Cir. Aug. 1, 2013).
- Moore v. Mylan, Inc., 840 F. Supp.2d 1337, 1344 (N.D. Ga. Jan. 5, 2012). Phenytoin (Dilantin) case. Plaintiff’s complaint dismissed because it did not specify any manufacturer. Strict liability and negligence claims dismissed. Plaintiff may file an amended complaint complying with this ruling.
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 856 F. Supp.2d 904, 910-13 (E.D. Ky. Feb. 5, 2012). Propoxyphene (Darvon/Darvocet) case. Innovator manufacturers not liable under Georgia, Louisiana, Indiana, Kentucky, New Jersey, and Texas law for any claim involving a plaintiff that did not ingest its product. Product identification is a fundamental element of all product related torts. Fraud and misrepresentation are product liability claims subject to the product identification requirement. Innovator manufacturers owe no duty to consumers of generic products. Conte and Kellogg are a minority view. Federalism does not allow diversity courts to expand state-law liability. Affirmed, 756 F.3d 917, see below.
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 767595, at *2-9 (E.D. Ky. March 7, 2012). Propoxyphene (Darvon/Darvocet) case. Under Connecticut, Georgia, Indiana, Mississippi, New Jersey, New York, Oklahoma, Pennsylvania, South Carolina, Tennessee, and Texas law, original name innovator manufacturer owes no duty to and is not liable for any claim involving a plaintiff that did not ingest its product. Allegations that the original manufacturer continued to make some product for its successor and for generic manufacturers are not enough without corresponding allegations that the defendant made the particular drug that the plaintiff took. Without allegations that the product was mis-manufactured, there is no liability because warning claims are preempted. Affirmed, 756 F.3d 917, see below.
- Lukas-Werner v. Novo Nordisk, A/S, No. 1009-13177, transcript at 25-26 (Or. Cir. Multnomah Co. May 11, 2012). 17 Beta Estradiol (Activella) case. Innovator manufacturers not liable for negligence for failing to warn someone who didn’t take their drugs.
- Condouris v. Wyeth, 2012 WL 2401776, slip op. (N.J. Super. Law Div. June 26, 2012). Metoclopramide (Reglan) case. Innovator manufacturers not liable for negligence for failing to warn someone who didn’t take their drugs. All actions attacking product warnings are “product liability” actions under the New Jersey product liability statute. Mensing has no effect on state law. Conte is not New Jersey law.
- Lashley v. Pfizer, Inc., 877 F. Supp.2d 466, 471-76 (S.D. Miss. June 27, 2012). Metoclopramide (Reglan) case. Innovator manufacturers not liable under statutory product liability misrepresentation theories and all common-law theories are subsumed. Affirmed 750 F.3d 470 (5th Cir. 2014), see below.
- Lyman v. Pfizer, Inc., 2012 WL 2970627, at *17-18 (D. Vt. July 20, 2012). Metoclopramide (Reglan) case. Even under a Conte rationale, reliance on an innovator manufacturer’s old warnings or statements, where current warnings have materially changed, is not justifiable as a matter of law. Summary judgment granted on lack of reliance.
- Strayhorn v. Wyeth Pharmaceuticals, Inc., 882 F. Supp.2d 1020, 1028-31 (W.D. Tenn. Aug. 8, 2012). Metoclopramide (Reglan) case. Innovator manufacturers not liable under statutory product liability theories. To the extent that common-law theories for negligence, fraud, misrepresentation, suppression, constructive fraud, breach of warranty, or misrepresentation survive the statute, they fail to state a claim where the plaintiff neither purchased nor used an innovator product. Conte is an “extreme outlier,” and a federal court sitting in diversity should not expand state law. Affirmed, 737 F.3d 387, see below.
- Eckhardt v. Qualitest Pharmaceuticals, Inc., 889 F. Supp.2d 901, 905-10 (S.D. Tex. Aug. 9, 2012). Metoclopramide (Reglan) case. Innovator manufacturers not liable under statutory product liability theories for other, generic products. Misrepresentation-related claims are statutory product liability claims. To the extent common-law claims exist, innovator manufacturers are not liable for generic drug warnings under theories of negligence, misrepresentation, fraud, participatory liability, suppression of evidence, warranty or consumer fraud. Affirmed, 751 F.3d 674, below.
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3610237, at *3-4 (E.D. Ky. Aug. 21, 2012). Propoxyphene (Darvon/Darvocet) case. Under Arkansas, Connecticut, Georgia, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, and West Virginia law, innovator manufacturers not liable for any claim involving a plaintiff that did not ingest its product. Product identification is a fundamental element of all product related torts. Misrepresentation of a product is a product liability claim subject to the product identification requirement. No relevant state has adopted Conte. Federalism does not allow diversity courts to expand state-law liability. Affirmed, 756 F.3d 917, below.
- Phares v. Actavis-Elizabeth LLC, 892 F. Supp.2d 835, 843-46 (S.D. Tex. Aug. 30, 2012). Metoclopramide (Reglan) case. All claims involving products are “product liability” claims. Innovator manufacturers not liable under statutory product liability theories for other, generic products. Reconsideration denied, 2015 WL 12780637, at *4-5 (S.D. Tex. March 19, 2015).
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *4-8 (E.D. Ky. Sept. 5, 2012). Propoxyphene (Darvon/Darvocet) case. Innovator manufacturers not liable for any claim involving a plaintiff that did not ingest its product under Arizona, North Carolina, South Carolina, Nebraska, New Jersey, West Virginia, Florida, and New Hampshire law. Affirmed, 756 F.3d 917, see below.
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842271, at *5-7 (E.D. Ky. Sept. 5, 2012). Propoxyphene (Darvon/Darvocet) case. Innovator manufacturers sued by California plaintiffs might be liable under Conte for injuries from a generic product. A California trial court is obligated to apply Conte. O’Neill asbestos case is distinguishable.
- Baymiller v. Ranbaxy Pharmaceuticals Inc., 894 F. Supp.2d 1302, 1307-11 (D. Nev. Sept. 6, 2012). Paroxetine (Plavix) case. Innovator manufacturers not liable under any theory (strict liability, negligence, warranty, fraud/negligent misrepresentation, elder abuse) for not warning someone who didn’t take their drugs. Conte stands alone and is contrary to Nevada law and public policy.
- Del Valle v. Pliva, Inc., 2012 WL 4747259, at *5-8 (S.D. Tex. Sept. 12, 2012). Metoclopramide (Reglan) case. All claims involving products are “product liability” claims. Innovator manufacturers not liable under statutory product liability theories for other, generic products. Conte is inapplicable to the Texas statute. Affirmed 750 F.3d 470 (5th Cir. Feb. 21, 2014), see below.
- Hogue v. Pfizer, Inc., 893 F. Supp.2d 914, 917-19 (S.D. Ohio Sept. 27, 2012). Metoclopramide (Reglan) case. All non-statutory product liability claims have been abolished. All claims relating to a product are product liability claims. Non-active fraud, resembling failure to warn, is a product-related claim abolished by OPLA. The statute requires that the defendant have manufactured the product. There is no exception for inventors or “primary manufacturers.” Mensing has no bearing on the scope of state product liability law.
- Madden v. Teva Pharmaceuticals, USA, Inc., 2012 WL 4757253, slip op. (Pa. C.P. Phila. Co. Oct. 1, 2012). Zolpidem (Ambien) case. Innovator manufacturers not liable under Washington state product liability statute (which subsumes common-law theories such as negligence and misrepresentation) for not warning someone who didn’t take their drugs. The “relevant product” is the one to which the plaintiff was exposed. Innovator liability for generic drug injury has been overwhelmingly rejected.
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *2-3 (E.D. Ky. Oct. 10, 2012). Propoxyphene (Darvon/Darvocet) case. Innovator manufacturers not liable for any claim involving a plaintiff that did not ingest its product under Arizona, Florida, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, or West Virginia law. One case where ingestion of a branded drug was alleged survives dismissal. Misrepresentation claims cannot exist against a defendant that did not manufacture the product that the plaintiff ingested. Affirmed, 756 F.3d 917, below.
- Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 183-84 (5th Cir. Oct. 25, 2012). Metoclopramide (Reglan) case. The Supreme Court’s Mensing preemption decision did not impair Foster, which was a case interpreting Maryland common law. Even if it did, Louisiana law does not hold manufacturers liable to plaintiffs that did not use their products.
- Matherne v. Bayer Healthcare Pharmaceuticals, Inc., 2012 WL 12991011 (E.D. La. Nov. 2, 2012). Ciprofloxacin (Cipro) case. Innovator manufacturers not liable under Louisiana product liability statute on any theory for products they did not manufacture.
- Gardley-Starks v. Pfizer, Inc., 917 F. Supp.2d 597, 601-04 (N.D. Miss. Jan. 10, 2013). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Mississippi state product liability statute (which subsumes common-law theories such as negligence and misrepresentation) for not warning someone who didn’t take their drugs. Reconsideration denied, 2013 WL 12379417 (N.D. Miss. May 23, 2013) (refusing to follow Chatman).
- Washington v. Medicis Pharmaceuticals Corp., 2013 WL 496063, at *3-4 (S.D. Miss. Feb. 7, 2013). Minocycline (Minocin/Solodyn) case. Innovator manufacturers not liable under Mississippi product liability statute under any product liability theory. Innovator liability has not been recognized. Conte is a minority view.
- Bennett v. Hoffmann-LaRoche Inc., 2013 WL 1191899, at *3-6 (E.D.N.C. March 22, 2013). Mefloquine (Lariam) case. Innovator manufacturer cannot be liable under North Carolina product liability statute under any product liability theory because it is not responsible for injuries stemming from the use of another manufacturer’s generic bioequivalent. Plaintiff produced sufficient product identification evidence to survive summary judgment
- Chatman v. Pfizer, Inc., 960 F. Supp.2d 641, 652-53 (S.D. Miss. March 27, 2013). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Mississippi state product liability statute (which subsumes common-law theories such as negligence and misrepresentation) for not warning someone who didn’t take their drugs. Remainder of opinion, allowing a misrepresentation claim for affirmative misstatements has been withdrawn. See 2014 WL 4546042, below.
- Huck v. Trimark Physicians Group, 834 N.W.2d 82 (table), 2013 WL 1749774, at *3-4, slip op. (Iowa App. April 24, 2013). Metoclopramide (Reglan) case. Innovator manufacturers not liable for any claim involving a plaintiff that did not ingest its product. Mensing does not change state law. Regardless of the theory of liability, such as strict liability, negligence, misrepresentation, or breach of warranties only the product manufacturer is liable for product-related injuries. Affirmed, 850 N.W.2d 353, below.
- Bell v. Pfizer, Inc., 716 F.3d 1087, 1092-93 (8th Cir. June 14, 2013). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Arkansas state product liability statute for failure-to-warn, negligence, strict liability; breach of implied warranties, misrepresentation, suppression of evidence, fraud, and gross negligence. The statute applies to any theory involving a product and requires that the plaintiff have used the product. Affirming 2011 WL 904161, above.
- Guarino v. Wyeth, 719 F.3d 1245, 1251-53 (11th Cir. June 25, 2013). Metoclopramide (Reglan) case. Affirming summary judgment. An innovator manufacturer is not liable under Florida law for negligence, strict liability, breach of warranty, misrepresentation and fraud, or negligence per se where it did not make the product that allegedly injured the plaintiff. A “mountain of authority” supports rejection of innovator liability. Affirming, 2012 WL 1138631, above.
- Fullington v. PLIVA, Inc., 720 F.3d 739, 744 (8th Cir. July 15, 2013). Metoclopramide (Reglan) case. Affirming summary judgment. Innovator manufacturers not liable under Arkansas state product liability statute for strict liability, negligence, misrepresentation, fraudulent concealment, suppression of evidence, and breach of the implied warranties. Only the manufacturer of the product taken by the plaintiff may be sued under the Arkansas statute. Affirming 2010 WL 3632747 (E.D. Ark. Sept. 17, 2010), reconsideration denied, 2011 WL 6153608 (E.D. Ark. Dec. 12, 2011).
- In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2013 WL 5184129, at *2, slip op. (E.D. Ky. July 29, 2013). Propoxyphene (Darvon/Darvocet) case. Innovator manufacturers not liable for misrepresentation claims involving a plaintiff that did not ingest its product under Georgia or Texas law.
- Neeley v. Wolters Kluwer Health, Inc., 2013 WL 3929059, at *20-24, slip op. (E.D. Mo. July 29, 2013). Metoclopramide (Reglan) case. Granting summary judgment. An innovator manufacturer is not liable under Kentucky law for negligence, negligent misrepresentation, negligent supply of information for the guidance of others, breach of warranty, misrepresentation, fraud, or strict liability. Affirmed, 451 S.W.3d 694, below.
- Schrock v. Wyeth, Inc., 727 F.3d 1273, 1281-84 (10th Cir. Aug. 28, 2013). Metoclopramide (Reglan) case. Summary judgment affirmed. Innovator manufacturers not liable under Oklahoma law for negligence, strict product liability, breach of warranties, misrepresentation, or fraud. Federal courts should not recognize novel expansions of state law. Affirming 601 F. Supp.2d 1262, above.
- Weese v. Pfizer, Inc., 2013 WL 5691993, at *2 (N.Y. Sup. Oct. 8, 2013). Sertraline (Zoloft) case. Motion to dismiss granted. Innovator manufacturers not liable under any (unspecified, except for voluntary assumption of duty) theory.
- Tillman v. Woldenberg Village, Inc., 2013 WL 6198864, at *5, slip op. (E.D. La. Nov. 27, 2013). Phenytoin (Dilantin) case. Motion for judgment on the pleadings granted. Innovator manufacturers not liable under Louisiana product liability statute on any theory for products they did not manufacture.
- Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d 387, 401-06 (6th Cir. Dec. 2, 2013). Metoclopramide (Reglan) case. Summary judgment affirmed. An innovator manufacturer is not liable under the Tennessee product liability statute for negligent misrepresentation, fraudulent misrepresentation, express or implied warranty. Conte is an outlier. Federal courts should not recognize novel expansions of state law. Affirming 882 F. Supp.2d 1020, above.
- Lashley & Del Valle v. Pfizer, Inc., 750 F.3d 470, 470-78 (5th Cir. Feb. 21, 2014). Metoclopramide (Reglan) case. Summary judgment affirmed in two cases. An innovator manufacturer is not liable under the Mississippi product liability statute or under Texas law under any theory for injuries caused by the ingestion of generic products that the defendants did not manufacture.
- Dolin v. SmithKlineBeecham Corp., 62 F. Supp.3d 705, 712-23 (N.D. Ill. Feb. 28 2014). Paroxetine (Paxil) case. Summary judgment granted in part and denied in part. An innovator manufacturer cannot be liable under Illinois product liability law for injuries caused by a product they did not manufacture. The innovator might be liable under common-law negligence, which is separate from product liability. Reversed on other grounds Dolin v. GlaxoSmithKline LLC, ___ F.3d ___, 2018 WL 4001208 (7th Cir. Aug. 22, 2018).
- Stewart v. Sanofi Aventis U.S., LLC, 15 F. Supp.3d 1151, 1153-55 (N.D. Ala. April 10, 2014). Zolpidem (Ambien) case. Judgment on the pleadings granted. An innovator manufacturer is not liable under the Indiana product liability statute for failure to warn about a product it did not manufacture.
- Eckhardt v. Qualitest Pharmaceuticals, Inc., 751 F.3d 674, 680-82 (5th Cir. May 13, 2014). Metoclopramide (Reglan) case. Summary judgment affirmed. Innovator manufacturers not liable under Texas product liability statute, common-law negligent misrepresentation, or fraud to plaintiffs who ingested only generic products. There is no duty. Affirming, 889 F. Supp.2d 901, above.
- Tanner v. Alaven Pharmaceutical LLC, 2014 WL 2404287, at *1 (Ga. Super. May 27, 2014). Metoclopramide (Reglan) case. Summary judgment granted. Innovator manufacturers not liable under Georgia law under any theory. Affirmed, 2015 WL 7431346, see below.
- Dement v. Alaven Pharmaceutical LLC, 2014 WL 2404289, at *1 (Ga. Super. May 27, 2014). Metoclopramide (Reglan) case. Summary judgment granted. Innovator manufacturers not liable under Georgia law under any theory. Affirmed, 780 S.E.2d 735, see below.
- Hendricks v. Pharmacia Corp., 2014 WL 2515478, at *5-6 (Mag. S.D. Ohio June 4, 2014), adopted, 2014 WL 4961550 (S.D. Ohio Oct. 2, 2014). Phenytoin (Dilantin) case. Motion to dismiss granted. Innovator manufacturers not liable under the Ohio product liability statute.
- Colas v. Abbvie, Inc., 2014 WL 2699756, at *2-3, slip op. (N.D. Ill. June 13, 2014). Biaxin (clarithromycin) case. Motion to dismiss granted in part. An innovator manufacturer cannot be liable under Virginia law for failure to warn or negligence per se for injuries caused by a product it did not manufacture. Fraud claims allowed to continue without discussion of product identification.
- Moretti v. Wyeth, Inc., 579 F. Appx. 563, 564-65 (9th Cir. June 17, 2014). Metoclopramide (Reglan) case. Summary judgment affirmed. Innovator manufacturer not liable under Nevada law for misrepresentation by omission, constructive fraud, negligent misrepresentation, or fraudulent concealment theories. Non-manufacturers are under no duty to disclose regarding other person’s products.
- In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 836-39, 940-54 (6th Cir. June 27, 2014). Propoxyphene (Darvon/Darvocet) cases. Innovator manufacturers not liable for misrepresentation claims involving plaintiffs that did not ingest its product under Arkansas, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Nebraska, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Washington, or West Virginia law. Federalism does not allow diversity courts to expand state-law liability. If misrepresentation claims are considered to be product liability claims, then product identification is a fundamental element of all product related torts. If misrepresentation claims are not considered to be product liability claims, then innovator manufacturers owe no duties to consumers of competing generic products. Conte and Kellogg are a minority view. Dolin is rejected. One case where ingestion of a branded drug was alleged survives dismissal. Affirming, 856 F. Supp.2d 904, 2012 WL 767595, 2012 WL 3610237, 2012 WL 3842045, and 2012 WL 4831632, above.
- Huck v. Wyeth, Inc., 850 N.W.2d 353, 369-81 (Iowa July 11, 2014), cert. denied, (March 30, 2015). Metoclopramide (Reglan) case. Innovator liability not recognized under product liability, negligence (Restatement Third, Physical Harm §7), negligent misrepresentation (Restatement Second §552), or fraud. Allowing such liability would turn the law upside down. Conte and Weeks are outliers. Extensive policy discussion. Note: This is a 3-1-3 decision.
- Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605, 614-16 (5th Cir. July 11, 2014). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Louisiana product liability statute. Innovator manufacturers owe no duties to persons taking generic drugs.
- Willis v. Schwarz-Pharma, Inc., 62 F. Supp.3d 560, 567-68 (E.D. Tex. July 23, 2014). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Texas product liability statute for warning defects, negligence, implied warranty, and fraud. Texas law does not impose duties on those who did not supply the product alleged to cause injury.
- Cardinal v. Elsevier Inc., 2014 WL 10937406, at *2-3 (Mass. Super. Aug. 11, 2014). Metoclopramide (Reglan) case. Oklahoma law does not recognize innovator liability under either negligence or strict liability. A label is not a separate product.
- Wyeth, Inc. v. Weeks, 159 So.3d 649, 656-76 (Ala. Aug. 15, 2014). Metoclopramide (Reglan) case. Innovator manufacturers not liable under AMELD for failure to warn of risks of generic drugs. Innovator manufacturers may be liable under separate misrepresentation theories. Prospectively overruled by statute, as discussed here.
- Franzman v. Wyeth, Inc., 451 S.W.3d 676, 689-92 (Mo. App. Aug. 26, 2014). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Kentucky product liability statute for any claims involving generic drugs. Innovator manufacturers owe no duties to persons taking generic drugs.
- Nicely v. Wyeth, Inc., 451 S.W.3d 694, 2014 WL 4210385, at *3 (Mo. App. Aug. 26, 2014). Metoclopramide (Reglan) case. Analysis is same as Franzman.
- Chatman v. Pfizer, Inc., 2014 WL 4546042, at *2-3, slip op. at 2, 5-6 (S.D. Miss. Sept. 11, 2014). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Mississippi product liability statute (which subsumes common-law theories such as negligence and misrepresentation) for not warning someone who didn’t take their drugs and not liable for for misrepresentation for lack of duty. Vacating portion of 960 F. Supp.2d 641 that survived summary judgment in light of Lashley.
- Stephens v. Teva Pharmaceuticals, U.S.A., Inc., 70 F. Supp.3d 1246, 1251-53 (N.D. Ala. Oct. 1, 2014). Amiodarone (Cordarone) case. Innovator liability under Weeks exists only for fraud and misrepresentation claims. Weeks does not allow claims for failure to provide a medication guide. Off-label promotion claims predating the plaintiff’s prescription by over five years are irrelevant. Warning claims not asserting misrepresentations to the plaintiff’s doctor are not permitted under Weeks.
- Anselmo v. Sanofi-Aventis, Inc. USA, 2014 WL 8849464, at *1-3, slip op. (Kan. Dist. Oct. 13, 2014). Zolpidem (Ambien) case. Innovator manufacturers not liable under Kansas product liability statute for any theory of innovator liability, including negligent design. Conte is incompatible with Kansas law.
- Truddle v. Wyeth LLC, 2015 WL 160696, at *4 (N.D. Miss. Jan. 12, 2015). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Mississippi product liability statute for not warning someone who didn’t take their drugs.
- Allain v. Wyeth Pharmaceuticals, 2015 WL 178038, at *4 (N.D. Ala. Jan. 14, 2015). Amiodarone (Cordarone) case. Innovator liability under Weeks exists only for fraud and misrepresentation claims. It does not apply to mere failure to warn claims and does not create an affirmative duty for innovator companies to supply information to generic drug users.
- Phares v. Actavis-Elizabeth LLC, 2015 WL 12780637, at *4-5 (S.D. Tex. March 19, 2015). Metoclopramide (Reglan) case. Innovator liability does not exist under Texas law on a fraud theory. Fraud is a product liability theory.
- Guvenoz v. Target Corp., 30 N.E.3d 404, 409 n.1 (Ill. App. March 27, 2015). Dictum recognizing that under Illinois law, plaintiffs cannot recover from brand-name drug manufacturers whose products they did not ingest.
- Whitener v. Pliva, Inc., 606 F. Appx. 762, 766 n.2 (5th Cir. Apr. 9, 2015). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Louisiana product liability statute.
- McNair v. Johnson & Johnson, 2015 WL 3935787, at *4-6, slip op. at 12-17 (S.D.W. Va. June 26, 2015). Levofloxacin (Levaquin) case. Innovator liability not recognized under West Virginia product liability or warranty law for failure to warn of risks of generic drugs. Affirmed on certified questions, 2018 WL 2186550 below
- PLIVA, Inc. v. Dement, 780 S.E.2d 735, 743 (Ga. App. Nov. 20, 2015), cert. denied (Ga. March 7, 2016). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Georgia law for strict liability, negligence concerning alleged misrepresentations to users of generic products. Agreeing with “overwhelming national consensus.” Affirming 2014 WL 2404289 and 2014 WL 2404289, above, in pertinent part.
- Neeley v. Wolters Kluwer Health, Inc., 311 F.R.D. 427, 430 (E.D. Ky. Dec. 15, 2015). Metoclopramide (Reglan) case. Innovator manufacturers not liable under Kentucky law under any theory. Prior summary judgment issued in Missouri will not be disturbed.
- Tsavaris v. Pfizer, Inc., 154 F. Supp.3d 1327, 1339-41 (S.D. Fla. Jan. 7, 2016). Estradiol (norethindrone acetate (Activella)) case. Innovator manufacturers not liable under Florida law under any tort theory. Contrary cases are outliers.
- Brown v. Janssen, Inc., 2016 CarswellOnt 12959, slip op. at 1 (Ont. Super. April 7, 2016). Gabapentin (Neurontin) case. Innovator manufacturers not liable under Canadian law under any theory.
- Rafferty v. Merck & Co., 2016 WL 3064255, at *5-7 (Mass. Super. May 23, 2016). Finasteride (Proscar) case. Innovator manufacturers not liable under Massachusetts law in strict liability or negligence. The FDA’s proposed rule does not support creation of innovator liability. Reversed 92 N.E.3d 1205.
- Perdue v. Wyeth Pharmaceuticals, 209 F. Supp.3d 847, 853-54 (E.D.N.C. July 20, 2016). Cordarone (aminodarone) case. Innovator manufacturers not liable under North Carolina law.
- In re Mirapex Products Liability Litigation, 2016 WL 4217758, at *5 (Mag. D. Minn. June 16, 2016), adopted, 2016 WL 4203422 (D. Minn. Aug. 9, 2016). Mirapex/pramipexole dihydrochloride case. Innovator manufacturers not liable under exclusive Indiana product liability statute under any theory. Agreeing with the “vast majority of courts.”
- Mitchell v. Wyeth Pharmaceuticals, Inc., 2016 WL 11479893, at *3-4 (Mag. W.D. Tex. Dec. 16, 2016). Cordarone (aminodarone) case. Innovator manufacturers not liable under Texas law. Allegations of off-label promotion do not change this result.
- Wells v. Wyeth Pharmaceuticals, Inc., 233 F. Supp.3d 534, 539-40 (W.D. Tex. Jan. 11, 2017). Cordarone (aminodarone) case. Innovator manufacturers not liable under Texas law. Allegations of off-label promotion do not change this result.
- Coleson v. Janssen Pharmaceutical, Inc., 251 F. Supp.3d 716, 720-23 (S.D.N.Y. May 3, 2017). Risperdal (Risperidone) case. Innovator manufacturers not liable under New York law. These defendants had no oversight in the manufacturing of the generic drugs and earned no profit from the sale of the generic drugs. Therefore, the concerns that apply in asbestos cases do not favor liability for non-manufacturers of generic drugs.
- In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *4, 6-15 (D. Mass. Aug. 4, 2017). Zofran (ondansetron) case. Following “overwhelming majority of courts.” Innovator manufacturers not liable for alleged misrepresentations under any theory under Georgia, Indiana, Kentucky, Massachusetts, New York, and Oklahoma law. “Negligent undertaking” innovator liability based on alleged off-label promotion was one of the theories rejected.
- Garner v. Johnson & Johnson, 2017 WL 6945335, at *6-8 (C.D. Ill. Sept. 6, 2017). Levofloxacin (Levaquin) case. Illinois would allow innovator liability under negligence and negligent misrepresentation theories. Fraud claims dismissed.
- T.H. v. Novartis Pharmaceuticals Corp., 407 P.3d 18, 27-40 (Cal. Dec. 21, 2017). Terbutaline (Brethine) case. Innovator liability is the law of California, and may be imposed even on an innovator manufacturer that had already sold the rights to its product and left the market.
- Rafferty v. Merck & Co., 92 N.E.3d 1205, 1213-22 (Mass. March 16, 2018). Finasteride (Proscar) case. Massachusetts recognizes innovator liability where a brand-name manufacturer intentionally fails to update its label despite knowing of an unreasonable risk of death or grave bodily injury, or of facts that would disclose this risk to any reasonable person. Reversing 2016 WL 3064255, above.
- McNair v. Johnson & Johnson, 818 S.E.2d 852, 859-67 (W. Va. May 11, 2018). Levofloxacin (Levaquin) case. West Virginia does not recognize innovator liability under strict liability, negligence, or negligent misrepresentation. Congress can change Mensing if it desires. Traditional common law and a state statute limit liability for products to manufacturers and sellers. Affirming result in 2015 WL 3935787, above.
- In re Zofran (Ondansetron) Products Liability Litigation, 2018 WL 2317525, at *2-3 (D. Mass. May 21, 2018). Zofran (ondansetron) case. Following majority view. Recent California and Massachusetts decisions do not tip balance of predicting state law. Innovator manufacturers not liable for alleged misrepresentations under any theory under Oklahoma, Connecticut, or New Jersey law.
- Preston v. Janssen Pharmaceuticals, Inc., 2018 WL 5017045, at *2-3 (N.Y. Sup. Oct. 12, 2018). Topamax (topiramate) case. New York does not recognize innovator liability under any theory. Pharmacy records establish lack of exposure to branded drug.
- Trower v. Janssen Pharmaceuticals, Inc., 2019 WL 1571834, at *2-4 (D. Del. April 11, 2019). Risperidone (Risperdal) case. Delaware would not recognize innovator liability under any theory. Federal diversity courts should not expand state tort liability.
- Hopkins v. Janssen Pharmaceuticals Inc., 2019 WL 1567840, at *2 (D. Del. April 11, 2019). Risperidone (Risperdal) case. Delaware would not recognize innovator liability under any theory.
- McNair v. Johnson & Johnson, 773 F. Appx. 681, 682 (4th Cir. July 18, 2019). Levofloxacin (Levaquin) case. West Virginia does not recognize innovator liability.
- Stirling v. Novartis Pharmaceuticals Corp., 2019 WL 6456186, at *4-7, slip op. (Idaho Dist. Ada Co. Sept. 25, 2019). Terbutaline (Brethine) case. Idaho does not recognize innovator liability under negligence, fraud, negligence per se, implied warranty, negligent or intentional infliction of emotional distress.
- Forest Laboratories, LLC v. Feheley, 296 So.3d 302, 315 (Ala. Oct. 25, 2019). Escitalopram (Lexapro) case. The Alabama legislature abrogated Weeks v. Wyeth. Therefore, a pharmaceutical manufacturer cannot be held liable for injury caused by a product it did not manufacture under any legal theory.
- Montero v. Teva Pharmaceuticals United States, 2019 WL 6907467, at *1 (S.D.N.Y. Dec. 4, 2019). Tri-Lo Sprintec (Tri-Cyclen) case. New York does not recognize innovator liability under negligence, strict liability, express warranty, implied warranty, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, or fraud.
- Evans v. Johnson & Johnson Co., 2020 WL 616575, at *6-7 (D. Del. Feb. 10, 2020). Risperidone (Risperdal) case. Delaware would not recognize innovator liability under any theory.
- Johnson v. Novartis Pharmaceuticals Corp., 2020 WL 2300139, a *3 (W.D. Tex. May 7, 2020). Minocycline (Minocin) and Carbamazepine (Tegretol). Texas does not recognize innovator liability under strict liability, negligent failure to warn/fraudulent misrepresentation, breach of express or implied warranty. Affirmed, 2021 WL 406098 below.
- In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1195-98, 1203-33 (S.D. Fla. Dec. 31, 2020). Ranitidine (Zantac) litigation. Innovator manufacturers not liable for misrepresentation or negligence in cases involving plaintiffs that did not ingest its product under Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Wisconsin, and Wyoming law. On appeal, #21-10306 (11th Cir.).
- In re Fluoroquinolone Products Liability Litigation, 517 F. Supp.3d 806, 815-19 (D. Minn. Feb. 4, 2021). Ciprofloxacin (fluoroquinolone). Predicts that Illinois would recognize innovator liability under misrepresentation, fraud, and consumer fraud theories, but not under strict liability, negligence, or warranty theories.
- Johnson v. Novartis Pharmaceuticals Corp., 845 F. Appx. 305, 309-10 (5th Cir. Feb. 5, 2021). Minocycline (Minocin) and Carbamazepine (Tegretol). Texas does not recognize innovator liability under any theory. Affirming, 2020 WL 2300139 above.
- R.S.B. v. Merck & Co., 2021 WL 6113765, at *4-5 (E.D. Wis. Dec. 27, 2021). Singulair (montelukast). Wisconsin not recognize innovator liability under any theory.
- Doran v. Glaxosmithkline PLC, 607 F. Supp.3d 192, 201-12 (D. Conn. June 10, 2022). Lamotrigine (Lamictal). Predicting that Connecticut would allow innovator liability both under its product liability statute and in negligence.
- Nelson v. F. Hoffmann-La Roche, Inc., 642 F. Supp.3d 1115, 1133-34 (N.D. Cal. Nov. 28, 2022). Mefloquine (Lariam). California allows innovator liability, while New Jersey, Kentucky, Tennessee, Oregon, and Florida do not. Choice of law principles do not permit application of California law.