What follows is a “guest post” by Melissa Wojtylak of Reed Smith. We place the term in quotes because Melissa has expressed an interest in becoming a member of our crew of merry blogsters. We’re inclined to say yes (anything that reduces our own workloads is great), so expect to reading more of her work.
To its credit, the Comment acknowledges that the concept of innovator liability has received little support among courts or commentators. Comment, p. 1273. However, the author loses us immediately thereafter, when he opines that this is “based more on a perception that innovator liability is unfair or wrong than on a judgment of the legal merits of its underlying rationale.” Comment, p. 1273. Wait a minute – a little perspective, please. Sure, commentators will say what they will. But at last count, according to this blog’s branded/generic scorecard, courts have rejected the concept of innovator liability at least seventy three times (versus four that have accepted it) – and that doesn’t include the California Supreme Court, which in its opinion in O’Neil v. Crane Co., 53 Cal.4th 335 (2012), discussed here, impliedly overruled the Court of Appeal’s pure foreseeability creation in Conte. Not all of these seventy-three smackdowns can be the work of judges who are overly sympathetic to branded drug companies. And we suspect all of these judges, if asked, would take exception to the suggestion (heck, the outright statement!) that they rejected innovator liability without looking at “the legal merits of the underlying rationale.”
The Comment goes on to criticize courts’ adherence to the fundamental principle of product liability law that a manufacturer owes no duty to consumers of a product that it did not make, asserting that this “view” fundamentally misunderstands “the nature of products liability law in particular and of tort law in general.” Comment, p. 1274. Oh, really? We’d love to hear the basis for this sweeping statement, since the “view” being criticized has worked pretty well for a lot of courts, and is in line with the justifications for having products liability law in the first place – justifications set out in, inter alia, Restatement (Third) of Torts, Products Liability §2, comment a (1997), such as “creating safety incentives,” “encourag[ing] greater investment in product safety,” and “causing the purchase price of products to reflect . . . the costs of defects.”
But in the Comment, we never really do hear WHY the product identification requirement misses the mark. Instead, the author argues that because brand-name drug manufacturers know that generic manufacturers must use the same warnings that were approved for the branded products, it does not overly stretch the concept of foreseeability to assume that “generic drug patients” will rely on the warnings drafted by brand-name manufacturers. (Presumably the author means that prescribers, not patients, will rely on the warnings). Basically, the plaintiffs are “foreseeable” just because they exist. The author never makes a compelling argument for departing from the long line of cases holding that this result actually DOES overly stretch the concept of foreseeability. Notably, the author never addresses the extended trashing of the “pure foreseeability” standard by the California Supreme Court in the O’Neil opinion. Rather, at the end of the day, the Comment’s argument that branded manufacturers’ duty to warn should extend to the entire world seems to be based on the fact that it just seems reasonable and fair to the author – a “compensation uber alles” view of the law. This, of course, begs the question of why, in the author’s opinion, it’s wrong for courts and commentators to reject innovator liability based on their differing perceptions of what is “unfair,” but acceptable to argue FOR it on the basis that it’s unfair NOT to impose it.