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.”
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.
[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.
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.
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.