Photo of Steven Boranian

We were walking through San Francisco’s Chinatown the other day, and above an otherwise nondescript storefront we saw a sign that said “Fortune Teller.  Tells Past Present and Future.”  We are not sure what is worse:  Someone who claims the clairvoyant power of telling the “past” and “present,” or the poor sap who pays for the privilege of learning where he is and what has already happened to him.  It seems that telling the present would get somewhat tedious and repetitive:  “You are sitting in a second floor apartment in Chinatown across from a woman who looks like Professor Sybill Trelawney from Harry Potter and the Prisoner of Azkaban.  That will be $100 please.”

Now, telling the future — that’s a keen trick, one that we would pay to see, and one that we attempt from time to time here at the Drug and Device Law Blog, such as when we predict (or encourage) the demise of judicial opinions that are particularly wrong headed and/or wrongly decided.  You might have already guessed that we are leading up to yet another post on Conte v. Wyeth, 158 Cal. App. 4th 89 (2008), the wrongly reasoned and wrongly decided opinion from the California Court of Appeal that took the “product” out of “product liability.”  For those not keeping score, Conte held that a drug innovator can be liable for inadequate warnings in connection with a competitor’s generic version of the drug.  That is to say, a drug manufacturer can be liable for injuries alleged caused by a product it did not make and did not sell.  Holy tarot cards!  The fortune teller nearly fell off her chair when she saw that in our past.

Fortunately, Conte appears to have a future no brighter than another notorious California opinion that bent product liability and expanded liability for questionable reasons — Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980).  Sindell and its innovation known as market share liability was big news when it came out in 1980, and it was still making waves when we took Torts in law school in the early 1990s.  Today, 33 years after Sindell hit the books, we think it is safe to say that the opinion has had little lasting impact on the product liability landscape, and we doubt that it occupies any space in law school curricula other than as an interesting historical novelty.

We hope and expect that Conte will meet the same fate because nearly every court to consider Conte or its holding has rejected it.  A representative of this near unanimity is the recent opinion in Weese v. Pfizer, Inc., 2013 N.Y. Misc. LEXIS 4761 (N.Y. Misc. Oct. 8, 2013), the first opinion from New York’s state courts to consider “whether a drug manufacturer that did not manufacture the product alleged to have caused injury owes a duty to a plaintiff because of the required identity of warning labels.”  Id. at *2.  The plaintiff had taken the generic antidepressant sertraline, but she sued the innovator manufacturer alleging that it had not adequately warned of the risk of birth defects.  Id. at *1.  The New York court correctly held that the innovator manufacturer owed no duty to warn in connection with another manufacturer’s product because:
[i]n this case, [the defendant] had no intentional role in placing the specific product with the plaintiff.  It was not the seller.  Indeed, a third party — a competitor — manufactured and sold the product.  The connection [plaintiff] seeks to establish through the warning label is even more attenuated.  The label existed as a requirement of another third party, the federal government, aimed at the generic manufacturer.
Id. at **4-5.
The conclusion that followed is so self-evident that we can only shake our heads at the thought that anyone would contest it:

It is to be expected that [the defendant] has a duty in connection with its own products and labels.  However, that duty should not extend to products and labeling over which it has no control, even if those products and labels mirror its own, because it has done nothing toward putting them in the hands of consumers.

Id. at *5.
That sounds more like it.  Come to think of it, this holding sounds somewhat like yet another California opinion we read in law school, Greenman v. Yuba Power Products, Inc., 59 Cal. 3d 57 (1963), where Justice Roger Traynor wrote for the California Supreme Court that “a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Emphasis added).  And then there is this far more recent opinion from the California Supreme Court, where the Court rejected a duty to warn against hazards in another manufacturer’s product because “[a]n interpretation of [the law] that would require a manufacturer to warn about all potentially hazardous conditions surrounding the use of a product, even when those hazards arise entirely from the product of another manufacturer, reaches too far.”  O’Neil v. Crane Co., 53 Cal. 4th 335, 360 (2012).  Whatever the merits of Greenman v. Yuba and the legal era that it signaled, the opinion at least sets as the premise for liability that the defendant, and not someone else, manufactured and sold the alleged injury-causing product.  Departing from this premise is where Conte went off the rails.

Add another opinion to the “innovator liability” scorecard, and join us in foretelling that Conte will eventually collapse under the mountain of well-reasoned authority that is piling up against it.  By the way, the California Supreme Court and the District of the California Court of Appeal that decided Conte share a courthouse just one and a half miles from our storefront fortune teller.  Supporters of Conte, however, may want to avoid paying the price of admission; they might not like what they hear.

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