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We say “sort of” because the Philly court was applying
Washington law in Madden v. Teva Pharmaceuticals USA, Inc., 2012 Phila. Ct.
Com. Pl. LEXIS 293 (Oct. 1, 2012).  It would have been nice to get a good
anti-Conte holding under Pennsylvania law, but we will take Conte-bashing
wherever we can get it.  Moreover, with all the criticism of Philly
courts, it’s nice to see a decision that makes sense from the ground up. 
 Here, the brand manufacturer, Sanofi, prevailed on its preliminary objections (Pennsylvania-speak for a motion to dismiss) to claims for negligence and negligent misrepresentation.  Judge Tereshko affirmed that dismissal, and his opinion is interesting in a number of ways, not only on
Conte, but on choice of law.


Madden is an Ambien sleep-driving case, and a sad one at
that.  The plaintiff was prescribed Ambien in Everett, Washington.
 Brand name Ambien is manufactured by Sanofi.   The plaintiff
filled the prescription for the generic version, manufactured by Teva, in Redding,
California.  That is where the plaintiff ingested the drug, got into his
car one night, and crashed into a tree and electric pole at high speed. 
 The plaintiff filed a product liability complaint (including claims for
negligence and negligent misrepresentation)  against both brand and
generic defendants, and argued that California law applies.  We can guess
why the plaintiff wanted California law, but we have no idea why the case was
filed in the Philadelphia Court of Common Pleas.  The generic manufacturer, Teva, won a motion for judgment on the pleadings (presumably on Mensing grounds) and was dismissed from the case.  Judge Tereshko’s Madden opinion deals with the brand manufacturer’s attempt to get out of the case. 


Pennsylvania has abandoned the traditional place-of-injury
approach in favor of a flexible, multi-factor approach.  Those factors
include place of significant relationship, place of injury, place of conduct
causing the injury, domicile of parties, and place where the relationship is
centered.  Not surprisingly, the plaintiff emphasized that the ingestion,
accident, and injury all took place in California.  But the Madden court
reasoned that “the entire connection between Plaintiff and Sanofi, if any,
begins and ends in Washington, and any conduct on the part of Sanofi that
allegedly caused injury to Plaintiff would have therefore occurred in
Washington.”  Madden, 2012 Phila. Ct. Com. Pl. 293, *9.  Query
whether the choice of law analysis would be different for the generic
manufacturer.  When you think of it, it really is true that the brand name
manufacturer’s connection to the plaintiff was only in Washington.  It did
not manufacture the drug that was ingested in California.  
For the Madden
court, the key event was the writing of the prescription, which took place in
Washington.  With the learned intermediary doctrine, the issue is the
adequacy of the warnings given to the doctor.   Washington has “a
significant interest in ensuring that its physicians receive adequate information
regarding the risks of products that they prescribe, thus protecting physicians
in the State of Washington from increased liability, thus protecting physicians
in the State of Washington from increased liability and insurance premiums that
may ultimately be passed on to consumers in the form of increased healthcare
expenses.”  Id. at *11.  It turns out that that sort of hortatory
purpose language in the Washington statute played a significant role in the
court’s choice of law analysis.  The purpose of the Washington Product
Liability Act (the WPLA)  was “’to address a liability insurance crisis
which could threaten the availability of socially beneficial products and
services.’”  Id., quoting Washington Water Power Co. v. Graybar Elec. Co.,
112 Wash.2d 847, 850 (1989). 


Want to guess which way that policy cuts in terms of the
Conte analysis?


The Madden court observes that “[p]ermitting the significant
expansion of liability that Plaintiff is seeking in this case would be in
direct contrast to the goal of the WPLA and would only provide further
disincentives to innovation and development as well as increased costs for
consumers.”  Id. at **11-12.  Under the WPLA, product liability
claims can be brought only against the manufacturer or seller of the “relevant
product.”  See Wash. Rev. Code sections 7.72.010(3)-(4).  The
“relevant product” consists of “the product or those component parts that
actually caused the injury.”  Madden, 2012 Phila. Ct. Com. Pl. 293,
*14.  Sanofi, the brand manufacturer, did not manufacture the relevant


The plaintiff argued, as plaintiffs have argued in a number
of recent cases (it must be part of the plaintiff playbook), “that federal law
supports the notion that a pharmaceutical manufacturer can be liable for a product
it did not manufacture or sell.”  Id.  The argument cobbles together
Levine (limiting preemption of failure to warn  claims against brand
manufacturers) and Mensing (preempting state law claims against
generics).  The plaintiff’s argument (which is beginning to acquire an
aroma of desperation almost as strong as its stink of stupidity) did not
persuade the Madden court.  At this point, the Madden court notes that
“courts across the country have overwhelmingly refused to allow claims against
the manufacturer of a name-brand medication for damages allegedly caused by the
use of another manufacturer’s generic-equivalent medication on both legal and
policy grounds.”  Id. at *16. 


Note that we said “notes.”  Early in our career, we
worked with a crusty partner who was very particular about which verbs we could
use when we described what courts did.  It was verboten to say that a
court “found” something when we were talking about a legal holding. 
Courts “found” only facts.  Similarly, when discussing a court’s legal
analysis, we could say that a court “reasoned,” “observed,” etc., but we could
not say “noted” unless we were quoting a footnote.  Yes, in our salad days
we worried over this sort of thing.  Anyway, the Madden court actually did
supply a footnote that says, “To date, more than 40 cases in approximately 20
states have held that a name-brand manufacturer is not liable for injuries
allegedly caused by the use of a generic manufacturer’s product.”  There
then follows a long, long string-cite, the kind that usually induces
narcolepsy.  But wake up, because this is a very good, very useful
footnote.   Bexis suspects that the string-cite can be traced back to our Conte scorecard, based on the format and the inclusion of at least one relatively obscure case.  We certainly do not mind if one of the parties or Judge Tereshko borrowed from our handiwork.  You should do the same.  


So another win for a defendant and another rejection of
Conte.  At the risk of being soporific, we’ve been writing a lot about
that lately.  Perhaps the Conte nightmare will soon be over.