Remember right after Mensing when the refrain from the other side of the “v.” was that the “immunity” conferred upon generics meant that branded drugs were “safer”? But once the other side realized that generic preemption was for real, that line was quickly airbrushed from their playbook (ATLA pulled down that press release within a week – although we may have preserved it, we’re too lazy to look right now). Now what we hear from them is “all Conte all the time,” that is how it’s really the nefarious branded manufacturers who should be liable for each and every purported failing in generic labeling.
Fortunately, the courts haven’t been buying that twisted logic, as our Conte scorecard demonstrates. The other day Conte failed to impress the judge presiding over Reglan/metoclopramide litigation in Tennessee (or at least the Western District). See Strayhorn v. Wyeth Pharmaceuticals, Inc., No. 11-2058-STA-cgc, slip op. (W.D. Tenn. Aug. 8, 2012). In the first place, the Tennessee Product Liability Act subsumed all former common-law claims and required use of the defendant’s products. Slip op. at 15-16. Even aside from the TPLA, however, Conte was expressly rejected as “an extreme outlier” and a “minority” position. Id. at 12, 17-18.
Plaintiffs’ (there were seven cases) secondary theories also failed. Restatement (Second) of Torts §552 does not apply to product liability and is not a fraud claim. Slip op. at 18-19. Warranty claim require a sale of a product. Id. at 19-20.
Finally, the court invoked our favorite federalism principle:
[W]ithout guidance from a state’s highest court, a federal court sitting in diversity should be reluctant to expand the substantive law of that state . . . because federal courts sitting in a diversity case are in a particularly poor position to endorse a fundamental policy innovation.