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A recent decision in the propoxyphene litigation – Schiller v. Eli Lilly & Co., No. 2:12-247-DCR (E.D. Ky. Apr. 7, 2014) – confirms a now basic premise of product liability law: if you claim to have been injured by a drug that you don’t identify, you will lose.

The plaintiff in Schiller, a resident of Ohio, claimed to have been injured by generic propoxyphene, which she claimed to have taken for almost seven years.  She didn’t – or couldn’t – identify the particular drug or its manufacturer, so she instead named as defendants a number of companies that manufactured the drug. Discovery didn’t help her. She still couldn’t identify the drug or its manufacturer.  She had a serious product identification problem:

It is well-settled that a threshold requirement of any products-liability claim is that the plaintiff assert that the defendant’s product caused the injury. . . . There is no theory of product liability under which a defendant can be held liable for an injury caused by a product that it did not sell, manufacture, or otherwise supply to the plaintiff.

Slip op. at 3.

Unable to identify the product, the plaintiff had no claim.  And so, when one of the defendants moved for summary judgment, the court granted it.

It was of some interest to us, though, that the court relied on two decisions that rejected market-share liability in the DES litigation.  Id. at 3-4 (citing Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998); Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1431-32 (6th Cir. 1997) (applying Ohio law)).  For those who don’t recall, market-share liability was an attempt by DES plaintiffs who couldn’t identify which DES drug allegedly injured them to hold all DES manufacturers liable to the extent of their share of the overall DES market. That’s not too different from what the Schiller plaintiff tried to do, or from what some plaintiffs have tried to do in generic drug litigation. Ohio was one of the states to reject market-share liability in the DES litigation.  As we put it a few years ago, “[m]arket share liability is so not happening in Ohio.”

Nor is it in many other states.  Let’s see whether in the future we see more references to the DES market-share/product identification decisions in generic drug cases brought against multiple defendants by plaintiffs with product identification problems.