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We’re not keen on taking potshots at law review articles. 
As we have mentioned more than once, we usually find the first part of law
review articles, the analysis of the case law, to be useful.  But the part
of the article proposing some new approach usually contains more twaddle 
than logic.  Sometimes that twaddle becomes law somewhere.  When it
does, it usually turns out badly.  (DES market-share liability,
anyone?)  Still and overall, law reviews confer a benefit on the
profession for which we are grateful.  We are particularly reluctant to
gripe about student-authored law review notes.  Those notes are frequently
helpful in collecting relevant authorities.  If nothing else, they help us
make our string-cites stringier.   Those notes also signify something
unique to the law – how students can make valuable intellectual contributions
to a profession they will soon be joining.   Writing a law review
article is hard work. It is also typically a thankless task. 


Maybe this makes us grinchy, but we are unlikely to
extend thanks for a recent student law review note that blows kisses at our
bête noire, the wretched Conte decision.  The article is called
“”Picking Up the Tab for Your Competitors: Innovator Liability after
Pliva v. Mensing.” It is in the current issue of the George Mason Law
.  We are disappointed that the article concludes that the Supreme
Court’s Mensing decision should prompt courts to embrace the Conte error. 
Not to apply too broad a brush to any institution of higher learning, but we
normally think of George Mason as a place full of right-thinking folks. To say
the least, the article arrives as an unpleasant surprise.  Sure, the
article takes a position that is bad for our clients.  But it is also bad
policy and bad law.  The very title, by referring to picking up the tab
for one’s competitors, reveals that something is amiss.  Nevertheless, the
article is an interesting read and we congratulate the student on the
publication.   We offer greetings at the beginning of what we hope
will be a splendid career. 


We were not intending to talk about the George Mason
article at all today.  Tomorrow we will go through it and submit several
respectful points of disagreement.  But today’s case, Hogue v. Pfizer,
., 2012 WL 4466609  (S.D. Ohio Sept. 27, 2012),  all by itself
offers a pretty good a refutation of the article, so consider this report a
preview of tomorrow’s more scholarly recitation. 


We will make no bones about it; we like the Hogue
result.  Yet another case rejects the Conte theory of innovator
liability.  Add it to our Pioneer Defendant scorecard.  Still, law is about more than results.  It is
about how courts get to those results.  We cannot help but notice that the
George Mason law review article seems even more result-oriented than
usual.  The author is not the first to squirm over Mensing’s consequence
that generic consumers might lack remedies available to brand consumers. 
Even if that seems an odd result, it is no reason to do violence to basic,
well-settled principles of product liability law.   More to the
point, we are not sure how bizarre the disparate treatment really is.  We
bet most consumers would bargain away the right to pursue certain legal
remedies in return for lower prices.  We know that is so because people do
that every day when they purchase limited tort automobile insurance policies. 
No, that explicit bargain has probably not taken place with generic drugs, and
maybe some day we will write a law review article about how it could.  The
point is that such a trade-off makes sense.  By contrast, sticking a
brand manufacturer with potentially perpetual liability (even if it ceases
selling the branded product) for injuries caused by competitors seems
unfair.  Even the author of the article seems a little troubled by the
incongruity of it all.  Ultimately, the article proposes a legislative fix
that would permit generics to change their labels unilaterally.  But
meanwhile, let’s have some bad law. 


One other thing before we get to the Hogue case: 
the central error in the George Mason article resides in the notion that
has undermined the logic of those cases that had rejected Conte
liability.   It is true that in some of those cases the court
reasoned that generic consumers could pursue remedies against generic
manufacturers, a possibility now foreclosed by Mensing.   But those
cases also had to wrestle with a particular state’s product liability law, and
that law, unless it is Martian, will limit product liability to a defendant
that actually made or sold the product in question.  Simply stating that
limitation makes clear its reasonableness.  Any person blessed with common
sense will see that someone who made a product different from the one that
allegedly hurt the plaintiff has no business being sued.   But let’s
suppose that someone not so blessed, though blessed with a license to practice
law, will be clever enough to point out that the law abounds with examples
where people (or companies or partnerships) have been found liable to third
parties. Notions of foreseeability drive the analysis.  For example, an
accountant rendering a statement to a company might face a fraud or securities
suit by an aggrieved investor.  True enough.  But the accountant did
not merely foresee that the statement would be relied upon by third parties, he
or she knew that to be the case. And now you will say that a brand manufacturer
knows its label will be relied upon by doctors prescribing the generic
medicine. That hardly constitutes a gotcha.  Much of the value of the
accountant statement is that it will be relied upon by third parties. 
That is part of what the company is paying for, right?   By contrast,
even if a brand manufacturer knows that third-parties (prescribers of generics)
will indirectly rely on its label, it derives no benefit from that
reliance.   Indeed, brand manufacturers are damaged by the fact that
generic manufacturers can free-ride on the science and on the label.  But
there is another crucial difference.  Accountants do not get caught in the
pincers of product liability theories, including strict liability.  It
makes no sense to take products liability law, which is animated by particular
facts and policy concerns about product distribution and cost-spreading, and
then graft onto it doctrines from the general law of deceit that make no sense
in such a context. That is especially so when the state’s product liability
regime makes clear that product liability shall attach only to the maker or
seller of the specific product in question.  Foreseeability should not be
a fig-leaf to cover up perversions of law, science, and marketplace realities. 


Now we are rambling. 


Let’s turn to last week’s case of Hogue v. Pfizer, Inc.,
2012 WL 4466609  (S.D. Ohio Sept. 27, 2012), where the court refused to
embrace Conte, even in the wake of Mensing.   The plaintiff alleged
that she suffered from tardive dyskinesia as a result of ingesting generic
metoclopramide.  The defendant that manufactured the brand name version
(Reglan) filed a motion for summary judgment.  The court granted that
motion because the Ohio Product Liability Act (OPLA) displaces common law and
explicitly requires a plaintiff to prove that the defendant manufactured the
specific product that caused the injury.  The OPLA provides that proof
that a manufacturer designed or made “the type of product in question is not
proof that the manufacturer designed, formulated, produced, constructed,
created, assembled, or rebuilt the actual defective product in the product
liability claim.  A manufacturer may not be held liable in a product
liability action based on market share, enterprise, or industrywide
liability.”  Ohio Rev. Code section 2703.73(C)  No matter whether you
favor Justice Scalia or Judge Posner in their recent incendiary debate over
textual analysis, that Ohio statute makes clear that only the manufacturer of
the actual product used by the consumer may be haled into court.  The
Hogue court goes on to hold that “the Mensing decision has no bearing
whatsoever on the issue whether the Brand Defendants may be held liable under
Ohio Product liability law for injuries arising from the ingestion of generic
metoclopramide they did not manufacture.”  Hogue, 2012 WL 4466609 at
*5.   The OPLA “precludes” the plaintiff’s argument that the brand
manufacturers “are subject to liability as inventors or primary manufacturers
of metoclopramide as neither theory is an exception to the rule that a
plaintiff must prove  her injuries were caused by the actual product the
defendant manufactured.”  Id.  The plain words of Ohio law render
innovator liability impossible. Odds are that you can find similar language in
the laws of most states in the union – you know, defining a seller as the one who sold the product the plaintiff says injured her or the manufacturer as the one who manufactured that product.  


Interestingly, the law review article criticizes Mensing
for upsetting “the proper federalism balance between federal and state
law.”  But as the Hogue decision shows, a proper respect for federalism
inevitably compels rejection of the Conte doctrine.  If a state law
clearly imposes product liability only on the actual maker-seller of the
specific product at issue, a court has no business to rewrite or circumvent
that state law.  The Hogue opinion is sound.  We doubt it will be
overruled by the Sixth Circuit.  We know it cannot be overruled by a law
review article.