This post is only from the Reed Smith (more properly, the non-Dechert) side of the blog.

One hundred what, you say?

Certainly not years; the awful Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), decision just turned six – this blog is older than that.

According to our innovator liability scorecard, there are now more than 100 decisions rejecting innovator liability/Conte theories – quite a few more, if you count all the different opinions in litigation where the invalidity of innovator liability has been affirmed on appeal.

Our last post on the subject was just last Friday, to break the news of Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014), but Huck isn’t even the last  case on our scorecard any longer – that honor currently belongs to Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 1605 (5th Cir. 2014) (applying Louisiana law), which we later found out was decided the same day.

In one of our earlier posts, less than a week after Conte was decided, we made up an example to illustrate the potentially wide-ranging impact of allowing non-manufacturer liability for products based solely on “foreseeability”:

Plaintiff New Dad gives plaintiff New Mom his old SUV, manufactured by Gasguzzlers ‘R Us, so she has something big and safe to drive New Baby around.  To replace it, he buys a hybrid made by Minigas, Inc. to drive to work.  Wife puts New Baby’s car seat in the front seat, and plows into a telephone pole (or something else, it really doesn’t matter).  The airbag kills New Baby.  Gasguzzlers ‘R Us didn’t get its federal bailout and goes bankrupt.  But since both of the family cars had identical government-mandated (allegedly) inadequate warnings about not putting an infant car seat next to an airbag, who gets sued, Minigas – even though it’s car had nothing to do with the accident.

Farfetched?  We wish.  Isn’t it foreseeable that New Mom and Dad would have relied on the warnings in the brand new owner’s manual they just saw when buying their brand new hybrid, instead of the older manual in the SUV, which they haven’t looked at in years (assuming they still have the old manual at all)?  Under Conte’s omniforeseeability analysis, why not?

More Thoughts On Conte v. Wyeth (Nov.13, 2008).  Now we didn’t think much more about that – analogies are a dime a dozen – until we were reading another recent case rejecting Conte.  Guess what we found in Huck?

We are unwilling to make brand manufacturers the de facto insurers for competing generic manufacturers.  It may well be foreseeable that competitors will mimic a product design or label.  But, we decline [plaintiff’s] invitation to step onto the slippery slope of imposing a form of innovator liability on manufacturers for harm caused by a competitor’s product.  Where would such liability stop?  If a car seat manufacturer recognized as the industry leader designed a popular car seat, could it be sued for injuries sustained by a consumer using a competitor’s seat that copied the design?  Why not, under Huck’s theory, if it is foreseeable others will copy the design?

850 N.W.2d at 380 (citation omitted).  It’s not exact, but this eerily close for a coincidence.  So maybe we are having some sort of influence after all.

If we are, we certainly want to keep that up.  Thus, we think it’s time to take a closer look at the status of innovator liability.  A lot of states now have some sort of decision on this specific subject, but depending on the strength of that precedent, we may add some thoughts on product identification generally, since the issue comes up in other contexts, most notably market share liability and asbestos.  For example, Huck relied primarily on the Iowa Supreme Court’s prior decision rejecting market share liability – another novel claim that tries to decouple liability from actually making the allegedly injurious product.

So on the occasion of 100 decisions rejecting Conte innovator liability theories, here is a 50-state survey on the status of this benighted form of liability.

If any of our readers know of any innovator liability decisions that we have missed, by all means send them along.

The Current Restatement of Torts

True, it’s not the law of this state or that state, but the American Law Institute has been in the business of “restating” consensus/better view common-law principles for over seventy years.  The Third Restatement of Torts, Products Liability has this to say about product-related misrepresentation claims:

§9.       Liability of Commercial Product Seller or Distributor for Harm Caused by Misrepresentation

One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.

That’s what you call “black letter law.”  The elements of Third Restatement §9 are inconsistent with innovator liability in two ways.  First, as is true of other theories of product liability, the defendant in a claim for “misrepresentation” in the product related context must be “[o]ne engaged in the business of selling or otherwise distributing products.  Second, the claimed misrepresentation must have occurred “in connection with the sale of a product.”  Neither of these elements is present where the claimed misrepresentation was not made by the product seller at all, but rather allegedly occurred in in the labeling for a different manufacturer’s product and that labeling pre-existed the generic drug that was actually “sold” to the plaintiff and that is claimed to have caused the harm.

So, for beginners we have the current restatement of torts on our side.

Alabama

Innovator liability has been statutorily abolished in Alabama:

In any civil action for personal injury, death, or property damage caused by a product, regardless of the type of claims alleged or the theory of liability asserted, the plaintiff must prove, among other elements, that the defendant designed, manufactured, sold, or leased the particular product the use of which is alleged to have caused the injury on which the claim is based, and not a similar or equivalent product. Designers, manufacturers, sellers, or lessors of products not identified as having been used, ingested, or encountered by an allegedly injured party may not be held liable for any alleged injury.  A person, firm, corporation, association, partnership, or other legal or business entity whose design is copied or otherwise used by a manufacturer without the designer’s express authorization is not subject to liability for personal injury, death, or property damage caused by the manufacturer’s product, even if use of the design is foreseeable.

Ala. Code §6-5-530(a) (emphasis added).  Only cases filed prior to the statute’s six-months-after-becoming-law applicability date escape.  SB-80 §4.  The legislation likewise abolishes (to the extent they ever existed in Alabama) claims for market share liability, alternative liability, and conspiracy liability, if the effect is to impose liability on non-manufacturers.

The Alabama legislature was forced to act because, in a long and awful opinion that ignored much of the law cited in this post, the Alabama Supreme Court made Alabama the only state in the union to allow innovator liability, under a “misrepresentation” (not products liability) theory.  Wyeth, Inc. v. Weeks, 159 So.3d 649, 670-77 (Ala. 2014).  We discussed that Weeks reasoning extensively at the time, so we won’t inflict that on you again.

Prior to Weeks, courts applying Alabama law had rejected other forms on non-manufacturer liability such as market share liability, Franklin County School Board v. Lake Asbestos of Quebec, Ltd., 1986 WL 69060, at *5-6 (N.D. Ala. Feb. 13, 1986), and generally required product identification as an essential element in other product-related litigation involving prescription medical products.  Bloodsworth v. Smith & Nephew, 2005 WL 3470337, at *5 (M.D. Ala. Dec. 19, 2005).  None of that mattered to (or was even cited by) the Alabama Supreme Court in Weeks, except in the dissent.

Alaska

Alaska hasn’t been cursed with much prescription medical product liability litigation, and we haven’t run across anything on Conte, market share liability, or product identification.  The general statement of strict liability in Alaska is that “a manufacturer is strictly liable . . . when an article he places on the market” is defective.  Clay v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244, 247 (Alaska 1969).

Arizona

No Arizona court has directly passed on innovator liability, but the federal district court in the Darvocet litigation twice held that the theory was incompatible with Arizona law.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *7-8 (E.D. Ky. Sept. 5, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *2-3 (E.D. Ky. Oct. 10, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014).  No Arizona plaintiffs appealed in Darvocet, so the Sixth Circuit’s opinion, In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), doesn’t discuss Arizona law.

Otherwise, courts applying Arizona law have rejected market share liability, both as to prescription medical products, In re Minnesota Breast Implant Litigation, 36 F. Supp.2d 863, 876 (D. Minn. 1998) (applying Arizona law), and products generally.  White v. Celotex Corp., 907 F.2d 104, 105 (9th Cir. 1990) (asbestos) (applying Arizona law).  Product identification has been required in pain pump cases under Arizona law.  Placencia v. I-Flow Corp., 2011 WL 1361562, at *2, 3-4 (D. Ariz. April 11, 2011); Peterson v. Breg, Inc., 2010 WL 2044248, at *2 (D. Ariz. April 29, 2010).A ringing defense of the principle that liability runs with the manufacture of, and profit from, the product in found in the successor liability case, Windsor v. Glasswerks PPX, LLC, 63 P.3d 1040, 1049 (Ariz. App. 2003).

Arkansas

The Eighth Circuit has twice held that Arkansas law rejects innovator liability.  Fullington v. PLIVA, Inc., 720 F.3d 739, 744 (8th Cir. 2013); Bell v. Pfizer, Inc., 716 F.3d 1087, 1092-93 (8th Cir. 2013).  So did the Sixth Circuit in Darvocet.

Guided by our sister circuit, we likewise predict that the Arkansas Supreme Court would construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification under Arkansas law.

In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 941 (6th Cir. 2014).  See also Fields v. Wyeth, Inc., 613 F. Supp.2d 1056, 1060-61 (W.D. Ark. May 11, 2009); Neal v. Teva Pharmaceuticals USA, Inc., 2010 WL 2640170, at *2 (W.D. Ark. July 1, 2010).  ‘Nuff said for now.

California

California, of course, is where Conte was decided.  However, Conte was decided by but one of several California appellate courts, and we understand that they don’t have to follow each other’s decisions.  In a hopeful development, after Conte was decided, the California Supreme Court, in an asbestos case, rejected the sort of foreseeability uber alles rationale on which Conte was based:

An 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. There is no precedent in California law for such a broad expansion of a product manufacturer’s duty.

O’Neil v. Crane Co., 266 P.3d 987, 1003 (Cal. 2012).

[F]oreseeability alone is not sufficient to create an independent tort duty. Instead, the recognition of a legal duty of care depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.

Id. at 1005 (citations and quotation marks omitted).  We pointed out this evident impairment of Conte immediately.

So far, however, arguments based on O’Neil have not deterred courts from following Conte under California law – even in the Darvocet MDL.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842271, at *5-7 (E.D. Ky. Sept. 5, 2012). Defendants in California thus probably need to take the lead on making direct challenges to Conte based on O’Neil.  To date, that hasn’t worked, though.  In T.H. v. Novartis Pharmaceuticals Corp., 199 Cal. Rptr.3d 768 (Cal. App. 2016), another California intermediate appellate court doubled down on Conte, rejected the O’Neil argument, and embraced an even more extreme version of innovator liability than in Conte  – holding the innovator manufacturer could be liable for the off-label use of a drug it did not sell, even though the innovator company had sold all rights to its product years before the claimed injury took place and was not alleged to have engaged in off-label promotion. Id. at 775-81.

Colorado

Colorado has a product liability statute that pretty explicitly defines “product liability action” as litigation brought against a “manufacturer” and the definition of manufacturer is not broad enough to include the manufacturer of a competing product that the plaintiff did not take.  Colo. Rev. Stat. §13-21-401.  Thus, a “plaintiff must establish that a particular defendant’s product was a substantial contributing cause of his injury.” Merkley v. Pittsburgh Corning Corp., 910 P.2d 58, 59 (Colo. App. 1995).  In Sheeks v. American Home Products Corp., 2004 WL 4056060, at *1-2 (Colo. Dist. Oct. 15, 2004), the court rejected innovator liability.

Connecticut

Connecticut was one  of the states that the Sixth Circuit in In re Darvocet, Darvon, &  Propoxyphene Products Liability Litigation, 756 F.3d 917, 2014 WL 2959271  (6th Cir. 2014), held would reject innovator liability:

Because Plaintiffs bring a personal injury claim allegedly caused by a defective product, their claims are within the scope of the CPLA [Connecticut Product Liability Act] and require product identification. . . .  We predict that if the Connecticut Supreme Court were directly faced with this question under Connecticut Law, it would find that Plaintiffs’ claims are product liability claims within the scope of the CPLA that do not survive under CUTPA [Connecticut Unfair Trade Practices Act]. Accordingly, the district court did not err in dismissing Plaintiffs’ claims against the Brand Manufacturers arising under Connecticut law because Plaintiffs did not allege that they ingested a product manufactured by the Brand Manufacturers.

Id. at 942.Connecticut law also rejects market share liability, even in the DES context.  Gullotta v. Eli Lilly & Co., 1985 WL 502793, at *9 (D. Conn. May 9, 1985).  Product identification has also been required in prescription medical product cases, Barbour v. Dow Corning Corp., 2002 WL 983346, at *3 (Conn. Super. April 19, 2002) (no liability for products made after sale of manufacturing subsidiary); and in product liability generally.  Bobryk v. Lincoln Amusements, Inc., 1996 WL 24566, at *3 (Conn. Super. Jan. 5, 1996) (“the plaintiff must plead and prove that the item which caused him harm was in fact the defendant’s ‘product’ within the meaning of the Act”).

Delaware

In Delaware plaintiffs must prove “that there was a causal relationship between the defendant’s product and the plaintiff’s physical injury.”  Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1377 (Del. 1991).  There is no Delaware law directly rejecting innovator liability. However, Delaware rejects market share liability.  Nutt v. A.C. & S. Co., 517 A.2d 690, 694 (Del. Super. 1986) (asbestos); In re Asbestos Litigation, 509 A.2d 1116, 1118 (Del. Super. 1986), aff’d, 525 A.2d 146 (Del. 1987).

District of Columbia

In the District, “[i]t is, of course, incumbent on the plaintiff in any product liability action to show that the defendant’s product was the cause of his or her injuries.”  Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1381 (D.C. 1995).  D.C. courts haven’t passed on innovator liability.  However D.C. law has rejected market share liability, even in the DES context.  Tidler v. Eli Lilly & Co., 851 F.2d 418, 424 (D.C. Cir. 1988).  Market share liability has also been rejected with respect to other products.  Bly v. Tri-Continental Industries, Inc., 663 A.2d 1232, 1244 (D.C. 1995) (gasoline); Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1383 & n.10 (D.C. 1995) (asbestos); District of Columbia v. Beretta U.S.A. Corp., 2002 WL 31811717, at *55-56 (D.C. Super. Dec. 16, 2002), aff’d in part and rev’d in part on other grounds, 872 A.2d 633 (D.C. 2005) (firearms).

Florida

In Florida, tort claims “fail as a matter of law [when] the record is undisputed that [defendant] did not design, manufacture, or distribute the [product].”  Hall v. Sunjoy Indus. Grp., Inc., 764 F. Supp. 2d 1297, 1301 (M.D. Fla. 2011) (collecting cases).  Florida is one of the states where innovator liability has been rejected over and over again.  Florida state courts have done so.  Dietrich v. Wyeth, Inc., 2009 WL 4924722 (Fla. Cir. Dec. 21, 2009); Sharp v. Leichus, 2006 WL 515532, at *2-6 (Fla. Cir. Feb. 17, 2006), aff’d per curiam, 952 So.2d 555 (Fla. App. 2007).

The Eleventh Circuit threw out all such claims in Guarino v. Wyeth, 719 F.3d 1245 (11th Cir. 2013), in reliance upon a “mountain of authority.”  Id. at 1251-53.  So have the following federal district courts:  Tsavaris v. Pfizer, Inc., 154 F. Supp.3d 1327, 1339-41 (S.D. Fla. 2016); Metz v. Wyeth, Inc., 830 F. Supp.2d 1291, 1293-95 (M.D. Fla. 2011), aff’d, 525 F. Appx. 893 (11th Cir. 2013); Levine v. Wyeth, Inc., 684 F. Supp.2d 1338, 1344-46 (M.D. Fla. 2010); Howe v. Wyeth Inc., 2010 WL 1708857, at *3-4 (M.D. Fla. Apr. 26, 2010).

Florida was also one of the states’ laws addressed in the Darvocet litigation.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 942-43 (6th Cir. 2014) (“We predict that the Florida Supreme Court would construe Plaintiffs’ misrepresentation claim as a product liability claim that fails for lack of product identification under Florida law”); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *7 (E.D. Ky. Sept. 5, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014).

Georgia

The Georgia product liability statute limits liability to manufacturers.  OCGA §51-1-11(b)(1). Thus, [r]egardless of whether the plaintiff proceeds under a theory of negligence or strict liability, a plaintiff must prove as part of his case that the defendant’s product was the proximate cause of the injuries alleged.” Fouch v. Bicknell Supply Co., 756 S.E.2d 682, 687 (Ga. App. 2014).

In PLIVA, Inc. v. Dement, 780 S.E.2d 735 (Ga. App. 2015), cert. granted (Ga. Sept. 6, 2016), the court held:

Regarding liability of a name brand drug manufacturer to a consumer who used only a generic drug, the overwhelming national consensus is that a brand-name manufacturer cannot be liable for injuries caused by the ingestion of the generic form of a product.  Because the name brand drug manufacturers owed no duty of care to [plaintiff], who never used their product, those defendants were entitled to judgment as a matter of law.

Id. at 743 (footnotes and quotation marks omitted).  See also Reynolds v. Anton, 2004 WL 5000272, at ??? (Ga. Super. Oct. 28, 2004) (“holding one manufacturer liable for the packaging/warnings of another is not based upon traditional Georgia tort law principles”) (no page numbering; last issue in opinion).

A couple of Georgia federal district courts have likewise rejected innovator liability.  Moore v. Mylan, Inc., 840 F. Supp.2d 1337, 1344 (N.D. Ga. Jan. 5, 2012); Swicegood v. Pliva, Inc., 543 F. Supp.2d 1351, 1354-59 (N.D. Ga. 2, 2008).

The Sixth Circuit in Darvocet predicted that Georgia law would reject innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 943 (6th Cir. 2014) (“we predict that the Georgia Supreme Court would either construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification or that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Georgia law”); accord In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2013 WL 5184129, at *2 (E.D. Ky. July 29, 2013).

Georgia law rejected market share liability even before it was prohibited by statute.  Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir. 1985) (applying Georgia law); Starling v. Seaboard Coast Line Railroad Co., 533 F. Supp. 183, 186 (S.D. Ga. 1982).  The Georgia product liability statute broadly prohibits “theories of market share or enterprise, or other theories of industry-wide liability.”  OCGA §51-1-11(d).  Innovator liability can be considered an “other” theory of “industry-wide liability.”

Product identification has also been required in other situations:

To survive summary judgment, Hoffman clearly needed to present evidence that she was exposed to defendants’ products. . . .  [U]nless the manufacturer’s defective product can be shown to be the proximate cause of the injuries there can be no recovery.  A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of the design of his own marketed product and not that of someone else.

Hoffman v. AC&S, Inc., 548 S.E.2d 379, 382 (Ga .App. 2001) (citations and quotation marks omitted) (asbestos case).  See Thurmon v. A.W. Chesterton, Inc., 61 F. Supp.3d 1280, 1285-86 (N.D. Ga. 2014) (same).  Murphy v. Aventis Pasteur, Inc., 270 F. Supp.2d 1368, 1377 (N.D. Ga. 2003) (holder of expired patent for medical device owed no “duty to warn the purchasers and recipients of . . . copied products manufactured by other companies”).

Hawaii

There isn’t any law in Hawaii on innovator liability.  Hawaii did adopt market share liability in a blood products case over 20 years ago, but as far as we know hasn’t addressed product identification since then.  See Smith v. Cutter Biological, Inc., a Div. of Miles Inc., 823 P.2d 717, 719 (Haw. 1991) (“Traditional proof in a negligence case includes the factor of causation.”) (syllabus at 6).

Idaho

There’s nothing under Idaho law about innovator liability.  In Doe v. Cutter Biological, 852 F. Supp. 909, 912-914 (D. Idaho 1994), the court rejected market share liability in the context of a blood product.  “Idaho would not allow recovery when it is not possible for plaintiff to prove which defendant caused his injury.”  Id. at 924.

Illinois

Illinois has long required product identification for all product liability matters, as evinced by the Illinois Supreme Court’s rejection of industry-wide liability under both market share liability and public nuisance rubrics.  See Young v. Bryco Arms, 821 N.E.2d 1078, 1087-91 (2004) (public nuisance); Smith v. Eli Lilly & Co., 560 N.E.2d 324, 337-39, 344-45 (Ill. 1990) (market share liability); City of Chicago v. American Cyanamid Co., 823 N.E.2d 126, 134-35 (Ill. App. 2005) (market share liability in public nuisance); Lewis v. Lead Industries Ass’n. Inc., 793 N.E.2d 869, 874-76 (2003) (same) (all four cases finding no causation as a matter of law without product identification).  See also Leng v. Celotex Corp., 554 N.E.2d 468, 470-471 (Ill. App. 1990) (rejecting market share liability pre-Smith in asbestos case); York v. Lunkes, 545 N.E.2d 478, 480 (Ill. App. 1989) (rejecting market share liability pre-Smith in battery case); Poole v. Alpha Therapeutic Corp., 696 F. Supp. 351, 353 (N.D. Ill. 1988) (rejecting market share liability pre-Smith in blood products case); Coerper v. Dayton-Walther, 1986 WL 4111, at *1 (N.D. Ill. March 27, 1986) (rejecting market share liability pre-Smith in tire rim case).

Moreover, in Illinois there is no duty to warn about the risks of a competing product:

[Defendant] is under no duty to provide information on other products in the marketplace.  Such a duty would require drug manufacturers to rely upon the representations made by competitor drug companies.  This arrangement would only lead to greater liability on behalf of drug manufacturers that were required to vouch for the efficacy of a competitor’s product.

Pluto v. Searle Laboratoriess, 690 N.E.2d 619, 621 (Ill. App. 1997).  Recently, an Illinois appellate court recognized in dictum that an “overwhelming majority of courts have held that generic consumers may not sue the brand-name manufacturer.”  Guvenoz v. Target Corp., Guvenoz v. Target Corp., 30 N.E.3d 404, 409 n.1 (Ill. App. 2015).  See Id. at 416 (plaintiffs “cannot obtain relief from brand-name drug manufacturers whose products they did not ingest”).

Nonetheless, in the teeth of all this precedent, a federal court sitting in diversity improperly predicted an expansion of Illinois law to encompass innovator liability in Dolin v. SmithKlineBeecham Corp., 62 F. Supp.3d 705, 718 (N.D. Ill. 2014) (“Taken out of context, language in product identification cases like Smith and Lewis may well appear to support [defendant’s] argument.  In truth, the principles for which that line of cases stands are inapposite here”).  In one paragraph, after agreeing that strict liability is precluded, Dolin decided that negligence was different:

This reasoning does not hold where a name-brand manufacturer is found, not strictly liable, but liable for negligence.  An injury (or at least liability for an injury) that occurs due to negligence can be avoided simply by satisfying one’s duty of care.  Significantly, this is so without regard to whether the name-brand or generic version of the drug was consumed.  Where a company’s negligence in connection with a product causes injury, it may naturally be held liable for having caused that injury.  Where there is no fault, however, the public policy rationale that justifies burdening the seller with the cost of injury rather than the consumer does not merit placing liability on an entity whose benefit from the sale is so remote, and whose ability to account for the cost is so limited.

Id. at 723 (no citations omitted; Dolin did not cite anything).  As we’ve said many times before, federal courts sitting in diversity should not do this – they have no authority to invent new forms of state-law liability.

However, In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the Sixth Circuit was also called upon to construe Illinois law. The appellate court trashed Dolin thoroughly:

We disagree with the Dolin court’s holding.  While Illinois does not have a product liability statute, its case law indicates that Plaintiffs’ misrepresentation claims would be construed as product liability claims and fail for lack of product identification.  Under Illinois law, a plaintiff must identify the supplier of the product and establish a causal connection between the injury and the product.  [citing Smith and York].  But, even if Plaintiffs’ misrepresentation claims were not construed as product liability claims, applying the same factors, we predict that the Illinois Supreme Court would not recognize brand manufacturers owed generic consumers a duty that can give rise to liability.

First, the generic consumers’ injuries are not the foreseeable result of the brand manufacturers’ conduct, but of the laws over which the brand manufacturers have no control.  Congress made the public policy decisions to lower barriers of entry for generic drugs, as has the Illinois state legislature in enacting laws to require certain prescriptions be filled with available generics.  Using these laws as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Additionally, the Dolin court failed to properly account for the magnitude of brand manufacturers’ burden of guarding against the injury; and the consequences of placing that burden on the brand manufacturers.  Courts in the majority note the traditional reticence against imposing liability on a manufacturer for injuries caused by their competitor’s products.  Further, there are grave health policy consequences associated with recognizing brand manufacturer liability in these situations including higher priced brand name drugs and fewer innovative drugs.

As a federal court predicting state law . . ., given a choice between an interpretation of state law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.  The potential for wide-ranging ramifications on Illinoisans’ health and welfare should we recognize a duty in this case renders the narrower path the proper choice.

We predict that the Illinois Supreme Court would either construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification or that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Illinois law.

Darvocet, 756 F.3d at 944-45 (citations and quotation marks omitted).

Indiana
Indiana’s statutory product liability law (Ind. Code §34-20-2-1) requires a plaintiff to “produce evidence to support a reasonable inference that the defendants’ products caused” the claimed injury.  Peerman v. Georgia-Pac. Corp., 35 F.3d 284, 287 (7th Cir. 1994) (applying Indiana law); accord Piltch v. Ford Motor Co., 11 F. Supp.3d 884, 888 (N.D. Ind. 2014) (the defendant’s product must have caused the plaintiff’s injuries); Thornburg v. Stryker Corp., 2006 WL 1843351, at *3–4 (S.D. Ind. June 29, 2006) (summary judgment where defendant neither sold nor manufactured product).
An Indiana trial court rejected Conte and innovator liability in Short v. Eli Lilly & Co., 2009 WL 9867531, at *4-9, slip op. (Ind. Super. Marion Co. March 25, 2009).  Indiana has a product liability statute, Ind. Code §34-20-1-1, et seq., that applies to all theories and limits liability to manufacturers.  Failure to identify the defendant’s product as being ingested by the plaintiff was fatal.  Id. at  *5-6.  Negligent misrepresentation was no away around the statute because the plaintiff never relied upon the defendant.  Id. at *6 (citing one of Bexis’ Bone Screw cases).  Conte was “inconsistent with Indiana law.”  Id. at *7-9.
Three federal courts applying Indiana law have relied on Short rejected innovator liability.  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the court recognized its role in diversity to tread softly on state law.  Id. at 945.  The court found no basis under Indiana law principles to hold a manufacturer liable for defects in a competing product:
[W]e take up the three factors in [used by the Indiana Supreme Court to evaluate duty claims].  First, the party’s relationship, we note that the generic consumers were injured by a product that the Brand Manufacturers did not manufacture, and, as already noted, courts are reluctant to impose “competitor liability.”  Second, the generic consumers’ injuries are not the foreseeable result of the Brand Manufacturers’ conduct, but of the laws over which the Brand Manufacturers have no control.  Using federal and Indiana state laws designed to increase the availability of generic drugs as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Further there are grave health policy consequences associated with recognizing brand manufacturer liability in these situations including higher priced brand name drugs and fewer innovative drugs. Taken together, we predict that the Indiana Supreme Court would decline to recognize that brand manufacturers owe generic consumers a duty of care that could give rise to liability.
Id. (citations and quotation marks omitted).  In Stewart v. Sanofi Aventis U.S., LLC, 15 F. Supp.3d 1151 (N.D. Ala. 2014), the court made a similar prediction of Indiana law:
While the Indiana Supreme Court apparently has not yet addressed this specific issue, a plain reading of the IPLA [Indiana Product Liability Act] as well as several IPLA-related opinions from other Indiana courts persuade this court that a plaintiff . . . who allegedly was injured by a prescription drug cannot state a claim for failure to warn under the IPLA against the manufacturer of a brand name prescription drug . . . when the allegations show that the plaintiff ingested solely a generic form of the drug.
Id. at 1153.  Most recently, in In re Mirapex Products Liability Litigation, 2016 WL 4217758 (Mag. D. Minn. Jun. 16, 2016), adopted, 2016 WL 4203422 (D. Minn. Aug. 9, 2016), the court again rejected innovator liability under Indiana law.
[M]anufacturers of a brand-name product are generally not liable for injuries caused to users of a generic equivalent (i.e., “innovator liability”). . . .  The plain language of the [Indiana statute] does not support a theory of innovator liability in Indiana. The opening clause of §34-20-2-1 requires that the defendant must have sold, leased, or otherwise put into the stream of commerce the product that caused the user or consumer’s physical harm.  Defendants cannot be held liable under the [statute] because they did not sell, lease, or put the generic drug into commerce. . . .  Based on the overwhelming authority that has declined to recognize a theory of innovator liability, the Court agrees with the Stewart and In re Darvocet courts that the Indiana Supreme Court would decline to recognize a theory of innovator liability.  Plaintiffs cannot hold Defendants liable for generic drugs manufactured by different pharmaceutical companies.
Id. at *5.
Indiana has also rejected market share liability.  City of Gary v. Smith & Wesson, Corp., 801 N.E.2d 1222, 1245 (Ind. 2003).  It requires product identification in asbestos cases.  Asbestos Corp. Ltd. v. Akaiwa, 872 N.E.2d 1095, 1098 (Ind. App. 2007).
Iowa
In Iowa we have Huck v. Wyeth, Inc., 950 N.W.2d 353 (Iowa 2014).  In Huck the Iowa Supreme Court does a number on innovator liability.  Id. at 369-81.  Although it appears to be a plurality opinion (3-1-3), it’s firmly based in Iowa precedent, which mandates product identification.  See  Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 75-76 (Iowa 1986) (rejecting market share liability in DES cases); Doe v. Baxter Healthcare Corp., 380 F.3d 399, 410-11 (8th Cir. 2004) (evidence insufficient to exclude other products as possible causes) (applying Iowa law).  You can read more about Huck here.
Kansas

In Kansas, “[the plaintiff] still has the burden of establishing that the particular defendant has sold a product . . . and that it caused his injury.”  Mays v. Ciba–Geigy Corp., 661 P.2d 348, 357 (Kans. 1983).  Kansas has as product liability statute, K.S.A. §60-3301, et seq., which merges all common-law theories and requires that the defendant be in the chain of sale.  In Anselmo v. Sanofi-Aventis, Inc. USA, 2014 WL 8849464, slip op. (Kan. Dist. Oct. 13, 2014), the court rejected innovator liability, holding that Conte was an outlier that was incompatible with the Kansas statute.

Plaintiffs’ generic liability theory has been overwhelmingly rejected by over forty courts in more than twenty states. . . .  These courts have reached a common conclusion: a brand name manufacturer cannot be held liable for injuries allegedly caused by a generic manufacturer’s product.  Based upon the similarities between the KPLA and these majority states’ statutes, this Court feels compelled to reach a similar conclusion.

Anselmo, 2014 WL 8849464, at *2.  The court also rejected a “negligent design” variant for similar reasons.  Id. at *3.

Kentucky

The Sixth Circuit has twice held that Kentucky’s product liability statute precludes innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 945-46 (6th Cir. 2014); Smith v. Wyeth, Inc., 657 F.3d. 420, 423-24 (6th Cir. 2011) (applying Kentucky law).  So have Missouri courts, which rampant litigation tourism has placed in the odd position of interpreting Kentucky law.  Franzman v. Wyeth, Inc., 451 S.W.3d 676, 689-92 (Mo. App. 2014) (applying Kentucky law); Nicely v. Wyeth, Inc., 451 S.W.3d 694, 697 (Mo. App. 2014) (applying Kentucky law); Neeley v. Wolters Kluwer Health, Inc., 2013 WL 3929059, at *20-24 (E.D. Mo. July 29, 2013) (applying Kentucky law).  Back in Kentucky, the same plaintiff struck out again.  Neeley v. Wolters Kluwer Health, Inc., 2015 WL 8967931, at *5 (E.D. Ky. Dec. 15, 2015) (Darvocet and Smith control; Kentucky law not “unsettled”). That’s probably enough, but every Kentucky case to consider market share liability has also rejected that dodge of product identification. Collins v. Ansell Inc., 2003 WL 22769266, at *2 (W.D. Ky. Nov. 19, 2003) (rejecting market share liability in latex gloves case); Dawson v. Bristol Laboratories, 658 F. Supp. 1036, 1040-41 (W.D. Ky. 1987) (rejecting market share liability in antibiotic case).
Louisiana
Louisiana, with its statutory product liability regime (La. Rev. Stat. §9:2800.52), is another of these states with lots of precedent rejecting innovator liability, every which way but loose.  The Fifth Circuit has rejected the theory twice.  Johnson, 758 F.3d 605, 614-16; Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 183-84 (5th Cir. 2012). The Sixth Circuit followed Demahy in reaching an identical holding in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 917 F.3d 917, 946 (6th Cir. 2014).
A Louisiana appellate court agreed.  Stanley v. Wyeth, Inc., 991 So.2d 31, 34-35 (La. App. 2008) (“a name brand drug manufacturer owes no legal duty to the consumer of a generic equivalent of its drug”).
Given all this appellate authority, Louisiana federal district courts have for years been playing wac-a-mole with plaintiffs asserting innovator liability.  Tillman v. Woldenberg Village, Inc., 2013 WL 6198864, at *5 (E.D. La. Nov. 27, 2013); Morris v. Wyeth, Inc., 2011 WL 4975317, at *3-4 (W.D. La. Oct. 19, 2011); Cooper v. Wyeth, Inc., 2010 WL 4318816, at *2-3, (M.D. La. Oct. 26, 2010); Craig v. Pfizer, Inc., 2010 WL 2649545, at *2-4 (Mag. E.D. La. May 26, 2010), adopted, 2010 WL 2649544 (W.D. La. June 29, 2010); Morris v. Wyeth, Inc., 2009 WL 4064103, at *4-6 (W.D. La. Nov. 23, 2009); LeBlanc v. Wyeth, Inc., 2006 WL 2883030, at *5-6 (W.D. La. Oct. 5, 2006); Possa v. Eli Lilly & Co., 2006 WL 6393160, at *1 (M.D. La. May 10, 2006); Tarver v. Wyeth, Inc., 2005 WL 4052382, at *2 (Mag. W.D. La. June 7, 2005), adopted, 2006 WL 1517546, at *2-3 (W.D. La. Jan. 26, 2006).
Maine
No court applying Maine law has addressed innovator liability, but in Maine there is “no authority for . . . a duty to warn against another supplier’s dangerous product.”  Bouchard v. American Orthodontics, 661 A.2d 1143, 1145 (Me. 1995).  Such claims “failed to establish any causal link between defendant’s product and plaintiffs’ harm.”  Id.  In Kinnett v. Mass Gas & Electric Supply Co., 716 F. Supp. 695, 697 n.7 (D.N.H. 1989) (applying Maine law), the court suggested that Maine would reject market share liability.  Defendant-specific product identification has also been required in Maine asbestos cases.  E.g., Elderkin-Graham v. New England Insulation Co., Inc., 2011 WL 6424838, at 1 n.1 (E.D. Pa. Nov. 28, 2011) (applying Maine law); Rumery v. Garlock Sealing Technologies, Inc., 2009 WL 1747854 (Me. Super. April 24, 2009).
Maryland
Maryland law produced the first decision rejecting innovator liability in a generic drug case.  Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994) (applying Maryland law).
Although actions for negligent misrepresentation arise in many contexts other than products liability, in this case the allegations of negligent misrepresentation are an effort to recover for injuries caused by a product without meeting the requirements the law imposes in products liability actions.  Maryland law requires a plaintiff seeking to recover for an injury by a product to demonstrate that the defendant manufactured the product at issue.
Id. at 168; accord id. at 171 (plaintiffs “offer no authority for their assertion that one manufacturer can be held liable for injuries stemming from another manufacturer’s product”).  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 946 (6th Cir. 2014), the Sixth Circuit was “guided” by Foster and reiterated that Maryland would reject innovator liability.  Accord Gross v. Pfizer, Inc., 2010 WL 4485774, at *2-3 (D. Md. Nov. 9, 2010) (following Foster; rejecting Conte), reconsideration denied, 2011 WL 4005266 (D. Md. Sept. 7, 2011).
As discussed in Foster, Maryland has rejected market share liability, even in the DES context.  Tidler v. Eli Lilly & Co., 851 F.2d 418, 424 (D.C. Cir. 1988) (applying Maryland law).
A fortiori Maryland has also retained its product identification requirement and refused to apply market share liability outside of DES.  Reiter v. AC&S, Inc., 947 A.2d 570, 573 (Md. App. 2008) (asbestos), aff’d, 8 A.3d 725 (Md. 2010); Lee v. Baxter Healthcare Corp., 721 F. Supp. 89, 93-94 (D. Md. 1989) (breast implant), aff’d without op., 898 F.2d 146 (4th Cir. 1990); Herlihy v. Ply-Gem Industries, Inc., 752 F. Supp. 1282, 1291 (D. Md. 1990) (fire retardants).See Miller v. Bristol-Myers Squibb Co., 121 F. Supp.2d 831, 836-837 (D. Md. 2000) (granting summary judgment where “Plaintiff will not have testimonial, documentary, or real evidence available at trial to confirm the identity of the manufacturer”).
Massachusetts
In Massachusetts “[w]e have never held a manufacturer liable . . . for failure to warn of risks created solely in the use or misuse of the product of another manufacturer.”  Mitchell v. Sky Climber, Inc., 487 N.E.2d 1374, 1376 (Mass. 1986).  Rather, “[a] plaintiff who sues a particular manufacturer for product liability generally must be able to prove that the item which it is claimed caused the injury can be traced to that specific manufacturer.”  Mathers v. Midland-Ross Corp., 532 N.E.2d 46, 49 (Mass. 1989) (citations omitted).
Two trial courts in Massachusetts have rejected innovator liability.  The first was Kelly v. Wyeth-Ayerst Laboratories Co., 2005 WL 4056740, at *2-5 (Mass. Super. May 6, 2005).
[T]his Court finds no merit to the plaintiffs’ argument that [defendant] . . ., by promoting their own product, undertook a duty to all users of [a drug], including those users who ingested generic [versions]. . . .  [A] manufacturer of one product owes no duty of care to one who did not use their product. . . .  [Defendant] owed no legal duty to the consumer of a generic equivalent of one of its products.  [T]here are strong social policy reasons for declining to find that a brand name drug manufacturer owes a duty to consumers of generic equivalents. . . .
Id. at *4. The second, Rafferty v. Merck & Co., 2016 WL 3064255 (Mass. Super. May 23, 2016), agreed with Kelly and the majority rule rejecting innovator liability:

[Plaintiff] cannot hold [the innovator manufacturer] liable for the harm he allegedly sustained. [It] did not manufacture the [generic drug], and although [it] did generate the information contained in the label that the generic manufacturer eventually used, it did not affirmatively supply the generic manufacturer with that information. Therefore, [plaintiff] has not alleged facts that plausibly suggest a connection between [the innovator] and the product that harmed him. . . . General negligence principles also support this conclusion. . . . Even assuming that it is foreseeable that an individual who ingests a generic drug will receive and rely on the label for the brand-name drug, the question of whether a defendant owes a plaintiff a duty of reasonable care is also decided ‘by reference to existing social values and customs and appropriate social policy.

Id. at *4-5 (citations (including Kelly) and footnotes omitted).  Further, the FDA’s proposed final rule regarding generic drug warnings “does nor evince . . . a change in policy toward adoption of innovator liability in the context of brand manufacturer liability where that company did not make the drug that caused injury supported any change in the law regarding innovator liability.”  Id. at *21.
In In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *3 (E.D. Ky. Oct. 10, 2012), aff’d on other grounds, 917 F.3d 917 (6th Cir. 2014), the court also dismissed innovator liability claims under Massachusetts law.
Further strong support for product identification in Massachusetts is the Commonwealth’s repeated rejection of market share liability even in the DES context.  Payton v. Abbott Labs, 437 N.E.2d 171, 189-90 (Mass. 1982); Kelley v. Eli Lilly & Co., 2007 WL 1238789, at *4 (D.D.C. April 27, 2007) (applying Massachusetts law); Armata v. Abbott Laboratories, 747 N.Y.S.2d 863, 865 (N.Y.A.D. 2002) (applying Massachusetts law).  A fortiori market share liability does not eliminate product identification as to other products.  Santiago v. Sherwin Williams Co., 3 F.3d 546, 549-51 (1st Cir. 1993) (lead paint) (applying Massachusetts law); Spencer v. Baxter International, Inc., 163 F. Supp.2d 74, 77 n.3 (D. Mass. 2001) (blood product); Mills v. Allegiance Healthcare Corp., 178 F Supp.2d 1, 8-9 (D. Mass. 2001) (latex gloves); Gurski v. Wyeth-Ayerst Division of American Home Products Corp., 953 F. Supp. 412, 418-19 (D. Mass. 1997) (oral contraceptive).
Michigan
In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the Sixth Circuit concluded that Michigan law was incompatible with innovator liability:
[W]e take up the three [duty] factors in [Michigan law].  First, regarding the party’s relationship, the generic consumers were injured by a product that the Brand Manufacturers did not manufacture, and as already noted, courts are reluctant to impose competitor liability.  Second, the generic consumers’ injuries are not the foreseeable result of the brand manufacturers’ conduct, but of the laws over which the brand manufacturers have no control. Using federal and Michigan state laws designed to increase the availability of generic drugs as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Finally, there are grave health policy consequences associated with recognizing brand manufacturer liability in these situations, including higher priced brand name drugs and fewer innovative drugs.  Taken together, we predict that the Michigan Supreme Court would decline to recognize that brand manufacturers owe generic consumers a duty of care that could give rise to liability.
Id. at 946-47 (citations and quotation marks omitted).
There hasn’t been much prescription drug litigation in Michigan since the state enacted its FDA compliance presumption.  Market share liability under the state’s peculiar Abel v. Eli Lilly & Co., 343 N.W.2d 164 (Mich 1984), DES theory has not extended beyond that drug, with product identification being maintained in both breast implants, In re Dow Corning Corp., 2010 WL 750200, at *2-3 (E.D. Mich. March 3, 2010) (“threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer”); In re Dow Corning Corp., 250 B.R. 298, 362-63 (Bankr. E.D. Mich. 2000), and in asbestos.  Marshall v. Celotex Corp., 651 F. Supp. 389, 392-94 (E.D. Mich. 1987).  In Michigan there is no “duty to warn of the hazards of using products manufactured by someone else.”  Brown v. Drake-Willock International, Ltd., 530 N.W.2d 510, 515 (Mich. App. 1995).
Minnesota
An appellate court in Minnesota rejected innovator liability in Flynn v. American Home Products Corp., 627 N.W.2d 342 (Minn. App. 2001).
Appellant argues that respondents intended all consumers rely on their representations to the FDA and owed all consumers a duty to disclose material facts, but that contention conflicts with Minnesota common law, which requires a stronger relationship and a direct communication.  Appellant did not purchase or use respondents’ product, and therefore, there was no direct relationship between them, let alone a fiduciary relationship that gave rise to a duty.
Id. at 350.
Applying Minnesota law, the Eighth Circuit rejected innovator liability in Mensing v. Wyeth, Inc., 588 F.3d 603, 612-14 (8th Cir. 2009) (relying on Flynn and Foster), rev’d in part on other grounds, 131 S.Ct. 2567 (2011), reaffirmed in pertinent part and vacated in part on other grounds, 658 F.3d 867 (8th Cir. 2011).
In Zandi v. Wyeth, 2009 WL 2151141, at *3-4 (Minn. App. July 21, 2009) (unpublished), the court affirmed summary judgment for an innovator drug manufacturer and one generic company where the plaintiff failed to introduce evidence that she ever ingested those defendant’s drugs, as opposed to a different generic brand.
Minnesota has rejected market share liability as a way around product identification.  Bixler v. Avondale Mills, 405 N.W.2d 428, 430 (Minn. App. 1987) (cotton cloth); Mason v. Spiegel, Inc., 610 F. Supp. 401, 406 & n.7 (D. Minn. 1985) (same).
Mississippi
Mississippi is another state with an abundance of law concerning innovator liability.  In Lashley v. Pfizer, Inc., 750 F.3d 470 (5th Cir. 2014), the Fifth Circuit affirmed that Mississippi rejects this theory:
The Mississippi Products Liability Act (“MPLA”) applies “in any action for damages caused by a product” and requires a plaintiff to prove that it was the defendant’s product that caused the injury.  [Plaintiff] argues that the . . . brand defendants are not “manufacturers or sellers” of the product, relying on a Mississippi case holding that “the MPLA does not preclude claims against defendants who are neither manufacturers nor sellers” of a defective product.  Lawson v. Honeywell International, Inc., 75 So.3d 1024, 1030 (Miss. 2011).  This argument fails because brand defendants are, indeed, manufacturers − and were they not, there would be no relationship on which to presume liability (since they did not design the drug).  In any event, because [plaintiff] did not ingest the . . . brand defendants’ products, he has not established a duty.
Id. at 476-77 (other citations omitted).  The district court opinion that was affirmed, Lashley v. Pfizer, Inc., 877 F. Supp.2d 466, 471-76, 480 (S.D. Miss. 2012), contained a lengthy discussion of why innovator liability was incompatible with Mississippi law.  Other Mississippi trial courts agree.  Truddle v. Wyeth LLC, 2015 WL 160696, at *4 (N.D. Miss. Jan. 12, 2015); Gardley-Starks v. Pfizer, Inc., 917 F. Supp.2d 597, 601-04 (N.D. Miss. 2013); Washington v. Medicis Pharmaceuticals Corp., 2013 WL 496063, at *3-4 (S.D. Miss. Feb. 7, 2013).  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 947-48 (6th Cir. 2014), the Sixth Circuit followed Lashley in holding that Mississippi rejects innovator liability.
Chatman v. Pfizer, Inc., 960 F. Supp.2d 641 (S.D. Miss. 2013), allowed innovator liability based on a misrepresentation theory (recognizing that product liability theories were invalid).  However, Chatman relied (id. at 652-55) on the same Lawson v. Honeywell rationale specifically rejected by the Fifth Circuit in Lashley. The Chatman court recognized that Lashley invalidated its misrepresentation theory in Chatman v. Pfizer, Inc., 2015 WL 160696, at *4, slip op. at 5-6 (S.D. Miss. Sept. 11, 2014), and vacated that part of its prior decision, entering summary judgment for the innovator defendant on all claims.
In Gorman–Rupp Co. v. Hall, 908 So.2d 749, 757 (Miss. 2005), the court enforced the product identification requirement in an asbestos case.
Missouri
In Missouri, a plaintiff must “establish that the particular defendant actually caused the problem.  Absent product identification evidence, [plaintiff] simply cannot prove actual causation.”  City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 116 (Mo. 2007).  The only Missouri precedent specifically on innovator liability is, In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3610237, at *2 & n.7 (E.D. Ky. Aug. 21, 2012) (“There is no theory of product liability under which a defendant can be held liable for an injury caused by a product it did not sell, manufacture, or otherwise supply to the plaintiff.”), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014) (no Missouri plaintiff appealed).  This Darvocet opinion cited, inter aliaSt. Louis v. Benjamin Moore, 226 S.W.3d at 112–15, in which the Missouri Supreme Court rejected market share liability.  Indeed, Missouri rejected market share liability as a way around product identification, even in the DES context.  Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 246-47 (Mo. 1984) (discourages safety innovations since defendants liable for competitors’ conduct).  In all “product liability claims,” a Missouri statute requires that the defendant have “transferred” the product that injured the plaintiff.  VAMS §537.760(1).
Montana
There is no law in Montana on either innovator liability.  The general causation rule for product liability actions in Montana requires that a “defect existed when the product left the hands of the particular defendant.’  Duncan v. Rockwell Manufacturing Co., 567 P.2d 936, 939 (1977) (quoting Prosser).
Nebraska

“[U]nder Nebraska law, a plaintiff must show, inter alia, the defendant’s product caused injury to a plaintiff.”  Barrett v. Rhodia, Inc., 2009 WL 2477560, at *8 (D. Neb. Aug. 11, 2009), aff’d, 606 F.3d 975 (8th Cir. 2010).  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 948-49 (6th Cir. 2014), the Sixth Circuit predicted that Nebraska would reject innovator liability:

We predict that the Nebraska Supreme Court would either construe Plaintiffs’ misrepresentation claims as product liability claims under the Nebraska statute defining product liability actions that fail for lack of product identification, or that the Brand Manufacturers did not owe the Plaintiffs a duty that could give rise to liability under Nebraska law.

Id. at *28 (noting that Nebraska, like a number of other states, has a comprehensive product liability statute).  The Tenth Circuit has also indicated that Nebraska would adhere to product identification and reject market share liability.  Menne v. Celotex Corp., 861 F.2d 1453, 1468 n.22 (10th Cir. 1988) (applying Nebraska law).

Nevada
In Nevada, “the injured party must prove that exposure to the products made or sold by that particular defendant was a substantial factor in causing the injury.”  Holcomb v. Georgia Pac., LLC, 289 P.3d 188, 197 (Nev. 2012) (citations omitted).  In Moretti v. Wyeth, Inc., 579 F. Appx. 563 (9th Cir. 2009) (affirming Moretti v. Wyeth, Inc., 2009 WL 749532, at *3-4 (D. Nev. March 20, 2009)), the court held:
The district court properly concluded that Nevada law does not recognize [plaintiff’s] claims.  Under Nevada law, a misrepresentation by omission is actionable only if the defendant was under a duty to disclose the relevant information.  The duty to disclose requires, at a minimum, some form of relationship between the parties.  [The Nevada Supreme Court] explicitly rejected concealment claims against [a defendant], stating that: “[it] had no duty to disclose to the [plaintiffs] any superior knowledge it may have had regarding the safety of [its] products, however, because it was not directly involved in the transaction from which this lawsuit arose, or any other transaction with the [plaintiffs].
Id. at 564 (following Dow Chemical Co. v. Mahlum, 970 P.2d 98 (Nev. 1998)).  Accord Baymiller v. Ranbaxy Pharmaceuticals Inc., 894 F. Supp.2d 1302, 1307-11 (D. Nev. 2012) (also rejecting innovator liability and Conte).
New Hampshire
In Bartlett v. Mutual Pharmaceutical Co., 659 F. Supp.2d 279 (D.N.H. Sept. 30, 2009), the court, in the course of rejecting a (pre-Mensing) preemption argument, noted:
The vast majority of courts have rejected the notion that the manufacturer of the brand-name drug may be liable for defects in its generic equivalent on a theory of “innovator liability.”
Id. at 309 n.40.  Bartlett did not decide the issue under New Hampshire law.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *7 (E.D. Ky. Sept. 5, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014), the court held that New Hampshire would reject innovator liability.  Darvocet cited University System of New Hampshire v. U.S. Gypsum Co., 756 F. Supp. 640, 653-56 (D.N.H. 1991), rejecting market share liability in an asbestos case, and MacCleery v. T.S.S. Retail Corp., 882 F. Supp. 13, 15-16 (D.N.H. 1994), a corporate succession dispute holding that “imposition of liability depends upon the plaintiff proving that the defendant manufacturer made the product that caused the plaintiff’s injury.”
New Jersey
New Jersey has a product liability statute that subsumes all other claims and requires product identification.  N.J.S.A. §§2A:58C-l, et seq.  Four New Jersey trial court opinions have rejected innovator liability in generic drug cases, most recently Condouris v. Wyeth, 2012 WL 2401776 (N.J. Super. Law Div. June 26, 2012):
Having concluded that the Plaintiffs’ claims are governed by the [Product Liability Act], the Court finds that Plaintiffs’ action must fail because they did not ingest a product made or sold by the Brand Defendants.  In New Jersey, it is well-settled that in products-liability litigation, [a plaintiff] must demonstrate that his or her injuries were caused by defendant’s product.
Id. (citation and quotation marks omitted).  Condouris followed the prior three cases, Rossi v. Hoffmann-LaRoche, 2007 WL 7632318 (N.J. Super. L.D. Jan. 3, 2007); Westerlund v. Wyeth, Inc., 2008 WL 5592753, at *3 (N.J. Super. Law Div. Oct. 20, 2008); Sloan v. Wyeth, 2004 WL 5767103 (N.J. Super Law. Div. Oct. 13, 2004).
Federal courts agree.  Three different Darvocet opinions have rejected innovator liability under New Jersey law.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 856 F. Supp.2d 904, 911 (E.D. Ky. 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir.  2014); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 767595, at *2 n.5 (E.D. Ky. March 7, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *1-3 (E.D. Ky. Oct. 10, 2012), aff’d and rev’d on other grounds, 917 F.3d 756 (6th Cir. 2014).  None of the New Jersey plaintiffs appealed, so the Sixth Circuit did not address New Jersey law.  Also, in Adamson v. Ortho-McNeil Pharmaceutical, Inc., 463 F. Supp.2d 496, 505 (D.N.J. Nov. 16, 2006), reconsideration denied, 2007 WL 604790 (D.N.J. Feb. 20, 2007), the court rejected innovator liability under New Jersey law when advanced as a claim for unjust enrichment.
Product identification has repeatedly been required in cases rejecting market share liability, both with respect to DES and other products, including prescription medical products.  Shackil v. Lederle Laboratories, 561 A.2d 511, 517, 526 (N.J. 1989); (no market share liability in vaccine cases); Namm v. Charles E. Frosst & Co., 427 A.2d 1121, 1125 (N.J. Super. App. Div. 1981) (same, DES); Lyons v. Premo Pharmaceutical Labs, Inc., 406 A.2d 185, 190 (N.J. Super. App. Div. 1979) (same, DES); Johnston v. Aventis, 2007 WL 954017 (N.J. Super. Law Div. March 9, 2007) (same, vaccine); Pipon v. Burroughs-Wellcome Co., 532 F. Supp. 637, 639 (D.N.J. 1982) (same, asbestos), aff’d without op., 696 F.2d 984 (3d Cir. 1982) (applying New Jersey law); Gianvito v. Premo Pharmaceutical Laboratories Inc., 940 N.Y.S.2d 272, 273-74 (N.Y. App. Div. March 20, 2012) (same, DES) (applying New Jersey law).
New Mexico
There is no New Mexico precedent either on innovator liability or market share liability.  The general New Mexico causation standard is that “[a] defendant can only be liable for damages that the particular defendant caused.”  Westbrook v. Lea General Hospital, 510 P.2d 515, 518 (N.M. App. 1973).  In asbestos cases, New Mexico law requires “product identification” so “that defendants’ products actually caused the [injuries].”  Huber v. Armstrong World Industries, Inc., 930 F. Supp. 1463, 1465 (D.N.M. 1996).
New York
Coleson v. Janssen Pharmaceutical, Inc., ___ F. Supp.3d ___, 2017 WL 1745508, slip op. (S.D.N.Y. May 3, 2017), became the fourth decision to reject innovator liability under New York law.  In addition to relying on the cases below, id. at *3, it rejected the theory under New York’s recent asbestos bare metal decision:
Defendants had no oversight in the manufacturing of the generic drugs.  They earned no profit from the sale of the generic drugs.  Given the length of time generic drugs can sell following a patent’s expiration, to find a new duty would unforeseeably expand the cost of liability on brandname drug manufacturers.  With this judicial landscape, it is concluded that the New York authorities are consistent with the majority of other courts around the country in rejecting liability for a company that itself did not manufacture, sell, or distribute generic versions of its name-brand drug.
Id. at *4.
In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. June 27, 2014), the Sixth Circuit held that innovator liability did not exist under New York law:
[A]ny duty a brand defendant has in connection with its own products and labels does 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.  We predict that the New York Court of Appeals would construe Plaintiffs’ misrepresentation claims as a product liability claim that fails for lack of product identification, or alternatively that the Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability.
Id. at 949 (citations and quotation marks omitted).  Darvocet relied upon prior New York precedent rejecting innovator liability. Id. (citing Goldych v. Eli Lilly & Co., 2006 WL 2038436, at *3-8 (N.D.N.Y. July 19, 2006); Weese v. Pfizer, Inc., 2013 WL 5691993, at *2 (N.Y. Sup. Oct. 8, 2013).
New York has allowed market share liability for DES, and only DES, distinguishing both the characteristics of the product and the circumstances of DES-specific legislative action.  With respect to all other products, medical or otherwise, the product identification requirement remains.  See Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1067-68 (N.Y. 2001) (no market share liability for handguns); Brenner v. American Cyanamid Co., 699 N.Y.S.2d 848, 851-52 (N.Y. App. Div. 1999) (same, lead paint); In re New York State Silicone Breast Implant Litigation, 631 N.Y.S.2d 491, 494 (N.Y. Sup. 1995) (same, breast implants), aff’d mem., 650 N.Y.S.2d 558 (N.Y. App. Div. 1996); Catherwood v. American Sterilizer Co., 532 N.Y.S.2d 216, 220 (N.Y. Sup. 1988) (same, toxic chemical); 210 E. 86th St. Corp. v. Combustion Engineering, 821 F. Supp. 125, 145-46 (S.D.N.Y. 1993) (same, asbestos).
Nor does New York impose a duty to warn about other manufacturer’s similar products:
[W]e decline to hold that one manufacturer has a duty to warn about another manufacturer’s product when the first manufacturer . . . had no control over the production of the subject [product], had no role in placing that [product] in the stream of commerce, and derived no benefit from its sale.
Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225-26 (N.Y. 1992).
North Carolina
North Carolina federal district courts, applying the state’s product liability statute, N.C. Gen. Stat. §§99B–1, et seq., have rejected innovator liability twice.  Couick v. Wyeth, Inc., 691 F. Supp.2d 643, 645 (W.D.N.C. 2010) (“no North Carolina authority allow[s] a name-brand drug manufacturer to be held liable for injuries caused by a generic competitor’s drug”); Stoddard v. Wyeth, Inc., 630 F. Supp.2d 631, 633-34 (E.D.N.C. 2009) (“under North Carolina law a manufacturer of a brand name pharmaceutical may not be held liable for injuries stemming from the use of another manufacturer’s generic bioequivalent”).
This authority convinced the Sixth Circuit in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), that North Carolina would not embrace the theory:
Guided by these decisions, we predict that the North Carolina Supreme Court would construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification, or alternatively that the Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability.
Id. at 950.   See also Bennett v. Hoffmann-LaRoche Inc., 2013 WL 1191899, at *3-6 (E.D.N.C. March 22, 2013) (rejecting innovator liability; finding sufficient product identification evidence to survive summary judgment); John & Jane Doe 2 v. Ortho-Clinical Diagnostics, Inc., 335 F. Supp.2d 614, 628-29 (M.D.N.C. 2004) (defendant’s “duty to Plaintiffs would not extend to warning Plaintiffs or other manufacturers who copied [defendant’s contrast agent]”).
North Carolina also rejects market share liability.  Griffin v. Tenneco Resins, Inc., 648 F. Supp. 964, 966 (W.D.N.C. 1986) (applying North Carolina law) (“the defendant manufacturer must be identified with the specific instrumentality allegedly causing the injury”).
North Dakota
North Dakota law has not addressed innovator liability.  However, the state has not allowed market share liability.  Black v. Abex Corp., 603 N.W.2d 182, 189 (N.D. 1999) (asbestos).  Other asbestos cases under North Dakota law also impose a product identification requirement.  E.g., Various Plaintiffs v. Various Defendants, 847 F. Supp. 2d 722, 732 (E.D. Pa. 2012) (applying North Dakota law).
Ohio
Product identification is incorporated into the Ohio Product Liability Act (“OPLA”).  A plaintiff must prove that the defendant “designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of harm for which the claimant seeks to recover.”  Ohio Rev. Code §2307.73(A)(3).  The statute expressly bans innovator (“the type of product”), as well as market share liability:
Proof that a manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual defective product. . . .  A manufacturer may not be held liable in a product liability action based on market share, enterprise, or industrywide liability.
Ohio Rev. Code Ann. §2307.73(C).  Cf. Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 192-93 (Ohio 1998) (rejecting market share liability in DES cases); Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1431-32 (6th Cir. 1997) (same) (applying Ohio law).
Ohio courts have twice rejected innovator liability under OPLA.  Hendricks v. Pharmacia Corp., 2014 WL 2515478, at *5-6 (Mag. S.D. Ohio June 4, 2014) (§2307.73(C) “readily dispose[s]” of innovator liability), adopted, 2014 WL 4961550 (S.D. Ohio Oct. 2, 2014); Hogue v. Pfizer, Inc., 893 F. Supp.2d 914, 918-19 (S.D. Ohio 2012) (“OPLA precludes [plaintiff’s] argument that the Brand Manufacturers are subject to liability as inventors or primary manufacturers of [the drug] as neither theory is an exception to the rule that a plaintiff must prove [his or] her injuries were caused by the actual product the defendant manufactured”).  This precedent “guided” the Sixth Circuit’s conclusion that Ohio would not permit innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 950 (6th Cir. 2014) (“we predict that the Ohio Supreme Court would construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification”).
Oklahoma
The Tenth Circuit held that innovator liability was incompatible with Oklahoma law in Schrock v. Wyeth, Inc., 727 F.3d 1273 (10th Cir. 2013), rejecting:  strict liability, negligence, fraud/misrepresentation, a “duty to speak,” and warranty.  Id. at 1281-84.  Plaintiffs “fail[ed] to cite Oklahoma case law suggesting that these general tort principles impose liability with respect to a defendant that did not sell, distribute, manufacture, or otherwise have contact with the allegedly harmful product.”  Id. at 1284 (affirming 601 F. Supp.2d 1262, 1266 (W.D. Okla. 2009)).  In reliance on these precedents, the Sixth Circuit agreed that Oklahoma law did not recognize innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 7560 F.3d 917, 950-51 (6th Cir. 2014) (“Guided by our sister circuit’s analysis of Oklahoma tort law, we predict that the Oklahoma Supreme Court would find that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Oklahoma law”).  Likewise, a Massachusetts state trial court, called upon to opine on Oklahoma law, followed Schrock and rejected innovator liability.  Cardinal v. Elsevier Inc., 2014 WL 10937406, at *2-3 (Mass. Super. Aug. 11, 2014).
If that were not enough, Oklahoma has also rejected market share liability, both in the DES context and elsewhere.  Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla. 1987) (asbestos); Wood v. Eli Lilly & Co., 38 F.3d 510, 513-514 (10th Cir. 1994) (applying Oklahoma law) (DES).
Oregon
The Oregon Supreme Court determined in Senn v. Merrell-Dow Pharmaceuticals, Inc., 751 P.2d 215, 233 (Or. 1988), that any tort theory that eliminated a plaintiff’s obligation to prove product identification “requires a profound change in fundamental tort principles of causation,” and “cannot [be] . . . consistent with common law principles of tort liability.”  Id. at 223 (rejecting alternative liability).
Three Oregon trial courts have rejected innovator liability.  In Phelps v. Wyeth, Inc., 857 F. Supp.2d 1114 (D. Or. 2012), the court, following the Mensing generic preemption decision, reaffirmed this position:
Under Oregon’s product liability law, the name-brand defendants cannot be found liable for plaintiffs’ injuries because plaintiffs cannot show that their injuries resulted from the use of the name-brand manufacturers’ product . . . .  I decline to stretch the duty of care for name-brand defendants to cover injuries caused by generic manufacturers’ products, given that their argument directly contradicts Oregon law.  [discussion rejecting Conte and Kellog omitted]  Oregon product liability law is controlling here, and it does not allow for name-brand manufacturer liability unless [plaintiff] can demonstrate that the name-brand manufacturers’ products caused her injury.
Id. at 1120-21. See Phelps v. Wyeth, Inc., 2010 WL 2553619, at *2 (Mag. D. Or. May 28, 2010) (“I cannot find that a decision to hold a manufacturer liable for injury caused by its competitor’s product is rooted in common sense”), adopted, 2010 WL 2553614 (D. Or. June 21, 2010).  Accord DaCosta v. Novartis AG, 2002 WL 31957424, at *8-9 (D. Or. March 1, 2002) (no liability where plaintiff never took defendant’s “chemically identical drugs”; “the allegedly defective product or form of [the drug], that [defendant] sold was not consumed by [plaintiff] and could not have caused [her] injuries”); Lukas-Werner v. Novo Nordisk, A/S, No. 1009-13177, transcript at 26 (Or. Cir. May 11, 2012) (“I do not think the Oregon Supreme Court would conclude that the innovator, the original manufacturer of a drug responsible for its labeling, has a duty arising out of the FDA regulations to the consumers or prescribers of all generic versions of its drug”).
Pennsylvania
“Pennsylvania . . . follows the general rule that a plaintiff, in order to recover, must establish that a particular defendant’s negligence was the proximate cause of her injuries.”  Skipworth v. Lead Industries Ass’n, 690 A.2d 169, 172 (Pa. 1997) (rejecting market share liability) (lead paint case).  Thus, (“[a] plaintiff must also establish that the injuries were caused by a product of a particular manufacturer.”  DeWeese v. Anchor Hocking Consumer & Industrial Products Group, 628 A.2d 421, 423 (Pa. Super. 1993).
[A] defendant must be identified as the manufacturer, distributor, or seller of the offending product before the injuries suffered by the plaintiff may be found to be proximately caused by some negligent act or omission of the defendant.  Absent such identification, there can be no allegations of duty, breach of duty, or legal causation, and hence there can be no liability.
Mellon v. Barre-National Drug Co., 636 A.2d 187, 191-91 (Pa. Super. 1993) (citations and quotation marks omitted) (rejecting market share liability for OTC drug).
The first Pennsylvania court to consider innovator liability was Colacicco v. Apotex, Inc., 432 F. Supp.2d 514 (E.D. Pa. May 25, 2006), aff’d on other grounds, 521 F.3d 253 (3d Cir. 2008), vacated on other grounds, 556 U.S. 1101 (2009).  Finding Foster “persuasive,” the court held:
[W]e agree that to impose a duty in this case would be to stretch the concept of foreseeability too far, as [an innovator manufacturer] cannot reasonably expect that consumers will rely on information they provide when actually ingesting another company’s drug.  Also, we agree that unfair consequences would result if we were to impose a duty upon [an innovator], when it obtained no benefit from the sale of [the] generic equivalent and had no control over the manufacturing or labeling of [the generic drug], yet it bore the expense of developing [the innovator drug] from which [the generic manufacturer] materially benefits.
*          *          *          *
Plaintiff in this case invites this Court to drastically expand the boundaries of Pennsylvania tort law without precedent or policy to support his position.  We believe the Supreme Court of Pennsylvania would not accept this invitation, and accordingly, we decline to do so as well.  Thus, this Court holds that under Pennsylvania law, there is no duty of care owed by a brand-name prescription drug manufacturer to a plaintiff allegedly injured by a generic equivalent drug manufactured by another company.
432 F. Supp.2d at 541 (footnote, citations and quotation marks omitted).
Based largely on Colacicco, the Sixth Circuit in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 951 (6th Cir. 2014) (“Guided by the Eastern District’s analysis of Pennsylvania tort law, we predict that the Pennsylvania Supreme Court would find that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Pennsylvania law”).
Taking a contrary view in an economic loss case, the court in Clark v. Pfizer, Inc., 2008 WL 7668730 (Pa. C.P. Phila. Co. March 17, 2008), held that an innovator manufacturer that allegedly promoted its product off-label could be liable for the “foreseeable” effect that its promotion would also increase off-label prescriptions of generic equivalents.  Id. (applying Restatement (Second) of Torts §§ 552 & 531 (1965)).
In addition to Skipworth and Mellon, numerous appellate courts have reaffirmed the product identification requirement under Pennsylvania law by rejecting market share liability or similar theories in litigation involving a wide variety of products.  Pennfield Corp. v. Meadow Valley Electric, Inc., 604 A.2d 1082, 1088 (Pa. Super. 1992) (electrical cable); Cummins v. Firestone Tire & Rubber Co., 495 A.2d 963, 972 (Pa. Super. 1985) (tires); City of Philadelphia v. Lead Industries Ass’n, 994 F.2d 112, 127 (3d Cir. 1993) (lead paint) (applying Pennsylvania law); Robertson v. Allied Signal, Inc., 914 F.2d 360, 379-81 (3d Cir. 1990) (asbestos; rejecting “fiber drift” theory) (applying Pennsylvania law); see also Bortell v. Eli Lilly & Co., 406 F. Supp.2d 1, 6-7 (D.D.C. 2005) (DES) (applying Pennsylvania law).
Rhode Island
In Rhode Island, “[i]t is axiomatic that a plaintiff must prove that the proximate cause of his or her injuries was the defendant’s product.”  Clift v. Vose Hardware, Inc., 848 A.2d 1130, 1132 (R.I. 2004).  While there isn’t any Rhode Island law on innovator liability, product identification is strongly supported by the Rhode Island Supreme Court’s firm rejection of market share liability non-manufacturer liability in Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I. 1991), refusing to allow market share liability even in DES cases.
South Carolina
“It is a fundamental principle of the law of products liability that a product manufacturer is not an insurer of its product, and a plaintiff may recover against a manufacturer only upon a showing that the product was in a defective condition unreasonably dangerous at the time it left the manufacturer’s control.”  Baughman v. General Motors Corp., 627 F. Supp. 871, 874 (D.S.C. 1985).
In Fisher v. Pelstring, 2010 WL 2998474 (D.S.C. July 28, 2010), after a lengthy discussion of the Fourth Circuit’s Foster decision and its progeny, the court “conclude[d] that South Carolina law does not support an action against the name-brand drug manufacturers . . .  for injuries allegedly caused by a generic drug manufactured by another company.  Id. at *8.  The same cases cited in Fisher led the Sixth Circuit to agree that South Carolina would not adopt innovator liability:
[P]laintiffs could not establish that the brand manufacturers owed them a duty because they did not manufacture or sell the products allegedly responsible for their injuries.  Guided by the Fisher court’s analysis of South Carolina law, we predict that the South Carolina Supreme Court would find that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under South Carolina law.
In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 951-52 (6th Cir. 2014).
Among the cases relied upon in Fisher were those holding that South Carolina would rejected market share liability, even in DES cases.  Mizell v. Eli Lilly & Co., 526 F. Supp. 589, 596 (D.S.C. 1981) (applying South Carolina law); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1007 (D.S.C. 1981) (applying South Carolina law).
South Dakota
“It is a fundamental principle that a plaintiff must prove, as an essential element of his case, that the defendant manufacturer actually made the particular product in question.”  Bradley v. Firestone Tire and Rubber Co., 590 F. Supp. 1177, 1179 (D.S.D. 1984) (refusing to expand market share liability beyond DES).  There are no innovator liability decisions from South Dakota.  No innovator liability case has yet been decided under South Dakota law.
Tennessee
The Sixth Circuit has twice determined that innovator liability is contrary to the law of Tennessee.  In Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d 378 (6th Cir. 2013), the court held:
The Tennessee Product Liability Act] . . . applies to all of the plaintiffs’ claims against the Brand-Name Manufacturers.  Unfortunately for the plaintiffs, however, these defendants were not the manufacturers or sellers of the generic drugs that injured the plaintiffs.  Yet “in order to recover under the TPLA, a plaintiff must show that the product manufactured and sold by the defendant caused the injuries he alleges to have sustained. . . .  [S]imply because a particular harm is foreseeable “is not dispositive in determining the existence of a legal duty. . . .  [W]e have no basis to conclude in this diversity case that the Tennessee Supreme Court would overrule its prior decisions holding that a manufacturer owes no duty of care to consumers of products made by others.  Tennessee law instead requires manufacturers to warn of hidden and unknown dangers in their products.

Id. at 403-05 (citations and quotation marks omitted) (affirming 882 F. Supp.2d 1020, 1028-31 (W.D. Tenn. Aug. 8, 2012)).  See In re Darvocet,Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 952 (6th Cir. 2014) (“[t]his Court has already determined that claims by consumers of generic drugs against brand manufacturers cannot stand under Tennessee law”).

Tennessee law also rejects market share liability.  Barnes v. Kerr Corp., 418 F.3d 583, 589 (6th Cir. 2005) (applying Tennessee law) (dental amalgam).  Nor is there any duty to warn about other manufacturer’s products.  Id. at 591 (“a product manufacturer generally has a duty to warn of the dangers of its own products, it does not have a duty to warn of the dangers of another manufacturer’s products”); McConkey v. McGhan Medical Corp., 144 F. Supp. 2d 958, 964 (E.D. Tenn. 2000) (“Plaintiffs cannot establish that [defendant] owed a duty . . . to warn about dangers of breast implants it did not produce”); Kellar v. Inductotherm Corp., 498 F. Supp. 172, 175 (E.D. Tenn. 1978) (“[i]f a manufacturer could be held liable for injury merely because it foresaw a danger created by another party, there would literally be no end of potential liability,” and manufacturers would become “insurers of products manufactured by others”).

Texas

Texas is another state with abundant precedent rejecting innovator liability.  In Eckhardt v. Qualitest Pharmaceuticals, Inc., 751 F.3d 674 (5th Cir. 2014), the court relied on extensive contrary precedent, in Texas and elsewhere:

Although [plaintiff] concedes that he has never used a product manufactured by the Brand Defendants, he argues that given the structure of the pharmaceutical industry as a result of federal law, the Brand Defendants owe a duty to eventual consumers of the drugs they design, even if those consumers use a generic version of the drug.  Several courts have faced this question.  Every circuit court has held (under the laws of several different states) that a brand-name manufacturer does not owe a duty to consumers who use a generic version of the drug.

Id. at 681 (citations omitted) (affirming 889 F. Supp.2d 901, 905-10 (S.D. Tex. 2012)).  The court in Lashley v. Pfizer, Inc., 750 F.3d 470 (5th Cir. 2014), the court reached the same conclusion.

Under Texas law, meanwhile, a products liability action is broadly defined as “any action against a manufacturer or seller for recovery of damages arising out of personal injury . . . allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.”  Tex. Civ. Prac. & Rem. Code Ann. §82.001(2).  The Texas Supreme Court has determined that under this statute, entities are “‘manufacturers’ . . . only with respect to their own products.”  It has also found that “[a] fundamental principle of traditional products liability law is that the plaintiff must prove that the defendants supplied the product which caused the injury.”

Id. at 477-78 (quoting Owens & Minor, Inc. v. Ansell Healthcare Products, Inc., 251 S.W.3d 481, 485 (Tex. 2008) (no duty to indemnify for competing products)); Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989) (rejecting market share liability in asbestos cases)).  The Sixth Circuit concurred in this conclusion.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 2014 WL 2959271, 952-53 (6th Cir. 2014).

A raft of Texas trial courts also reject innovator liability.  Negron v. Teva Pharmaceuticals USA, Inc., 2010 WL 8357563, at *1 (Tex. Dist. May 7, 2010); Willis v. Schwarz-Pharma, Inc., 62 F. Supp.3d 560, 564-66 (E.D. Tex. 2014); Phares v. Actavis-Elizabeth LLC, 892 F. Supp.2d 835 (S.D. Tex. 2012), reconsideration denied, 2015 WL 12780637, at *4-5 (S.D. Tex. March 19, 2015); Finnicum v. Wyeth, Inc., 708 F. Supp.2d 616, 620-22 (E.D. Tex. 2010); Hardy v. Wyeth, Inc., 2010 WL 1049588, at *2-5 (Mag. E.D. Tex. March 8, 2010), adopted, 2010 WL 1222183 (E.D. Tex. March 29, 2010); Burke v. Wyeth, Inc., 2009 WL 3698480, at *2-3 (S.D. Tex. Oct. 29, 2009); Cousins v. Wyeth Pharmaceutical, Inc., 2009 WL 648703, at *2 (N.D. Tex. March 10, 2009); Pustejovsky v. Wyeth, Inc., 2008 WL 1314902, at *2 (N.D. Tex. April 3, 2008), aff’d on other grounds, 623 F.3d 271 (5th Cir. 2010); Block v. Wyeth, Inc., 2003 WL 203067, at *2 (N.D. Tex. Jan. 28, 2003).

Wells v. Wyeth Pharmaceuticals, Inc., 2016 WL 8849935, at *4 (Mag. W.D. Tex. Dec. 16, 2016), adopted, 2017 WL 1826295 (W.D. Tex. Jan. 11, 2017), rejected a claim that an innovator’s alleged off-label promotion allowed it to be sued by a user of solely generic products.

Utah

In Utah, there must be “causation between [a plaintiff’s injuries] and the breach of any particular defendant.”  Highland Construction Co. v. Union Pacific Railroad Co., 683 P.2d 1042, 1047 (Utah 1984).

Innovator liability was rejected in Beutella v. A.H. Robins Co., 2001 WL 35669202, at *2-3 (Utah Dist. Dec. 10, 2001).

Vermont

In Vermont, “in a products liability action, a plaintiff must show that the defendant’s product . . . caused injury to the consumer.”  Farnham v. Bombardier, Inc., 640 A.2d 47, 48 (Vt. 1994); see Haskins v. Zimmer Holdings Inc., 2010 WL 342552, at *2 (D. Vt. Jan. 29, 2010) (“Plaintiffs must at least allege in their complaint that [defendant’s] product was administered”).  Nonetheless, a federal district court, in the absence of any Vermont precedent, chose to recognize innovator liability in Kellogg v. Wyeth, 762 F. Supp.2d 694 (D. Vt. 2010), because it was “fair” and “[t]here is no reason, under Vermont law, to limit [defendant’s] duty of care to physicians by the pharmacist’s choice of a generic bioequivalent.”  Id. at 706, 709.  Cf. Lyman v. Pfizer, Inc., 2012 WL 2970627, at *17-18 (D. Vt. July 20, 2012) (dismissing innovator liability case where warnings have changed because any reliance on older warnings would
not have been justifiable as a matter of law).

Virginia

In Virginia, a duty to warn “has no application in this case because [defendant] was not the manufacturer of the [product] or any of its component parts.”  Baker v. Poolservice Co., 636 S.E.2d 360 (Va. 2006).

In Colas v. Abbvie, Inc., 2014 WL 2699756 (N.D. Ill. June 13, 2014), the court, predicting Virginia law, held that Virginia would not recognize innovator liability.

Plaintiff admits that defendants were not the “suppliers” of the [drug] he took.  Thus, plaintiff cannot, as a matter of Virginia law, state a failure to warn claim against defendants. . . . Apparently, no Virginia court has decided whether a company that makes a brand name drug owes a duty to consumers of a generic drug made by another company.  However, the Virginia failure to warn decisions, and the weight of authority from other jurisdictions, suggest that the Virginia Supreme Court would not recognize such a duty.

Id. at *2 (citations omitted).

Washington

In Washington, “[i]n order to have a cause of action, the plaintiff must identify the particular manufacturer of the product that caused the injury.”  Lockwood v. AC & S, Inc., 744 P.2d 605, 612 (Wash. 1987).  Further, a “manufacturer’s  duty to warn is restricted to warnings based on the characteristics of the manufacturer’s own products, the law generally does not require a manufacturer to study and analyze the products of others and warn users of the risks of those products.”  Braaten v. Saberhagen Holdings, 198 P.3d 493, 498 (Wash. 2008) (citations and quotation marks omitted).

In Madden v. Teva Pharmaceuticals, USA, Inc., 2012 WL 4757253. (Pa. C.P. Phila. Co. Oct. 1, 2012), the court applied Washington law (where the plaintiff was domiciled and the prescription written) and concluded that innovator liability was not proper:

[T]he Court properly dismissed Plaintiff’s claims . . . because [defendant] was not the manufacturer or seller of the product ingested by the Plaintiff.  Here, it is undisputed that the Plaintiff purchased and ingested the generic drug . . ., not the brand-name drug . . . manufactured by [defendant].  Moreover, courts across the country have overwhelmingly refused to allow claims against the manufacturer of a name-brand medication for damages allegedly caused by the use of another manufacturer’s generic-equivalent medication on both legal and policy grounds.

Id. at ?? (near end of opinion) (footnote omitted).  In reliance on Madden, the Sixth Circuit also concluded that Washington would not recognize innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 953 (6th Cir. 2014).

West Virginia

In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the Sixth Circuit concluded that West Virginia “has rejected claims attempting to impose liability on brand manufacturers where plaintiffs ingested only generic drugs.”  Id. at 953.  Darvocet relied upon Meade v. Parsley, 2009 WL 3806716 (S.D.W. Va. Nov. 13, 2009).

[Innovator defendants] are not responsible for the damage resulting from a product that they did not manufacture, distribute or sell. . . .  Product liability law in West Virginia allows for recovery when the plaintiff can prove that “a product was defective when it left the manufacturer and the defective product was the proximate cause of the plaintiff’s injuries.”  Because neither [innovator defendant] manufactured the product that injured plaintiffs, there is no proximate cause.

Id. at *2-3 (quoting Dunn v. Kanawha County Board of Education, 459 S.E.2d 151, 157 (W. Va. 1995)).  Since then, a West Virginia federal district court has reached the same conclusion.  “[B]ecause [plaintiff] did not ingest name-brand drug], the defendants did not manufacture or sell the product that allegedly injured her.  Accordingly, they are not susceptible to the plaintiffs’ claims for product liability and breach of warranty.”  McNair v. Johnson & Johnson, 2015 WL 3935787, at *6 (S.D.W. Va. June 26, 2015).

However the Fourth Circuit, in an a McNair decision, failed to cite either Darvocet or Meade when it decided to certify the innovator liability question to the West Virginia Supreme Court in McNair v. Johnson & Johnson, 2017 WL 2333843, at *3-4 (4th Cir. May 30, 2017).

West Virginia law has not embraced market share liability.  State v. AAER Sprayed Insulations, 1987 WL 1428107 (W. Va. Cir. Sept. 4, 1987).  Nor does West Virginia require warnings about other persons’ products.  Smith v. Wyeth Laboratories, Inc., 1986 WL 720792, at *10 (S.D.W. Va. Aug. 21, 1986) (“plaintiffs offer no authority for their argument that a drug manufacturer may be required to represent that other drugs with similar effects are safe”).

Wisconsin

There are no innovator liability decisions in Wisconsin.  Wisconsin’s new product liability statute, however, subsumes all common-law claims (W.S.A. §895.046(2)) and mandates product identification.

[T]he manufacturer, distributor, seller, or promoter of a product may be held liable in an action under sub. (2) only if the claimant proves, in addition to any other elements required to prove his or her claim, that the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted the specific product alleged to have caused the claimant’s injury or harm.

W.S.A. §895.046(3).

A very limited exception is provided to the statutory product identification requirement, but it cannot be applicable to prescription drugs.  An essential element of that exception requires that the product “[w]as distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter.”  W.S.A. §895.046(4)(a)(3)(c).

Wyoming

There are no Wyoming decisions on innovator liability or market share liability.  The general Wyoming causation standard “require[s] the plaintiff to show the defendant’s product or negligence was a ‘substantial factor’ in bringing about the plaintiff’s harm.”  Johnson v. Allis-Chalmers Corp. Products Liability Trust, 11 F. Supp.3d 1119, 1125 (D. Wyo. 2014).

Canada

Innovator liability has also been raised, and rejected, by two Canadian (Ontario) courts.  In Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095 (Ont. Super. Feb. 18, 2010), the court comprehensively took down the concept of innovator liability under Canadian law.  Id. at ¶¶65-100. The court concluded:

Would it be fair to make the Defendants, as innovators, liable simply for releasing an idea that is copied? I think not, because once again this would be to impose strict liability and because the harm in releasing the idea is caused by releasing the idea without appropriate warnings about how the associated product may be used, but the innovator is not in a position to give any warnings about the uses being made by consumers of a copied version of the innovator’s product. A drug innovator cannot issue warnings about the hazards of a drug manufactured and sold by another pharmaceutical company, particularly when the hazards may be associated with off-label uses. Although the drug innovator can control the manufacture of its own product, monitor for adverse reactions to its product and give warnings about its own product, the innovator is not in a position to stop the generic manufacturer from releasing the generic drug or to stop physicians from prescribing the generic drug for off label uses. This conduct is not the innovator’s conduct, and, in my opinion, it would be unfair to impose a duty of care on the innovator for another’s conduct when the innovator cannot control, qualify, or stop that conduct. In my opinion, it would not be fair or just to make the innovator liable for failing to do something that should and can only be done by others.

Put differently, normally, an innovator of a prescription drug may discharge its duty of care by giving a warning about the risks associated with its own drug, but imposing a duty of care on the innovator for simply releasing the idea of the drug into the stream of commerce is to impose strict liability on the innovator and also to deny the innovator the defence of having given an adequate warning to a learned intermediary. In my opinion, such an imposition of liability would be unfair.

I, therefore, conclude that it is plain and obvious that the Defendants do not have a duty of care to the consumers of generic [drugs].

Id. at ¶¶98-100.  In an order as terse as Goodridge was extensive, the court in Brown v. Janssen, Inc., 2016 CarswellOnt 12959, slip op. (Ont. Super. April 7, 2016), the court struck all generic references from the complaint, finding that Goodridge “is directly on point and was correctly decided.”  Id. at 1. “No Canadian court has ever held that a brand name manufacturer owes a duty of care to the consumers of the generic version manufactured by a competitor.”  Id.