Bam, bam, bam. That’s the sound – not to be confused with Wham!, Bam!, or even Bamm-Bamm – of another nail being driven into the coffin of Conte v. Wyeth, Inc., 85 Cal. Rptr. 3d 299 (Cal. Ct. App. 2008). Conte is the nutty California case (that’s somewhat redundant, we know) holding that a name brand drug manufacturer can be held liable to people who took the generic drug for supposed defects in the generic’s labeling. Although we found the decision alarming when it was first reported, Conte has proven pretty much DOA outside of California. Thus, to our relief, Conte seems to have gone straight to the kind of coffin reserved for monsters that never should have been born, where one judge after another has hammered in the nails.
We have celebrated a pound of those nails in posts listed in our index under Conte and in our scorecard for pioneer liability in generic cases – which specifically notes what each case has had to say about Conte. The latest is Finnicum v. Wyeth, Inc., 2010 WL 1718204 (E.D. Tex. April 28, 2010).
Finnicum alleged she was injured by metoclopramide and sued three companies. Wyeth and Schwarz Parma moved for summary judgment, based on Finnicum’s stipulation that she never ingested metoclopramide made by either of them. Finnicum claimed that those defendants are responsible for the alleged deficiencies in the warnings for metoclopramide because they made Reglan, the brand-name form of metoclopramide.
The court hammered this theory. Texas law does not hold one manufacturer liable for another manufacturer’s products, the court held, and tons of district courts “have held that Texas law does not permit a plaintiff who ingested another manufacturer’s drug to maintain a failure-to-warn claim against a brand-name manufacturer.” Id. at *4 (citing five cases). So too have federal appellate courts rejected this theory. Id. at *4-5 (citing Foster v. American Home Prods. Corp., 29 F.3d 165 (4th Cir. 1994), and Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. 2009)). The court concluded: “Under Texas law, a brand-name manufacturer may not be held liable on a failure-to-warn claim asserted by a plaintiff who ingested a generic drug that was manufactured by another company.” Id. at *6.
We are happy that Conte is headed to the jurisprudential graveyard. We would be even happier if courts would put bigger and stronger nails in the idea that a plaintiff who took a drug can sue without bad consequences any company that ever made the drug. The law certainly recognizes that this idea is wrong; Finnicum, for example, relied on established Texas Supreme Court authority holding that “imposition of products liability is precluded when the defendant did not supply the product that caused the plaintiff’s injuries.” Id. at *4. It is simply crazy and an abuse of the judicial process that plaintiffs routinely sue every company that ever made a drug and then figure out in discovery who actually made the drug their client took. That practice wastes everyone’s time and money as each defendant must respond to the complaint and endure discovery until the plaintiff finally gets around to figuring out who made the drug. We really could use some judges hammering plaintiffs (or their lawyers) with the bam, bam, bam of sanctions for suing defendants without having a good faith belief that those defendants actually made the product that injured the plaintiff.