While the entire blogging team (RS, at least) was traveling home by planes, trains and automobiles from the DRI’s annual Drug and Medical Device conference, the West Virginia Supreme Court of Appeals – yes, the same court that rejected the learned intermediary rule little more than a decade ago – issued its blockbuster opinion today refusing to adopt innovator liability in McNair v. Johnson & Johnson, ___ S.E.2d ___, No. 17-0519, slip op. (W. Va. May 11, 2018).  Major congratulations to the winning team from Patterson Belknap, who not only emerged victorious, but sent McNair to us within minutes of its release – and were nice enough to let us know that they cited our Innovator Liability Scorecard in their briefing.  They, and their steadfast clients, just put a major finger in the dike to the benefit of us all.

As we’ve mentioned before, innovator liability in McNair found its way to West Virginia’s highest court via a certified question from a Fourth Circuit panel looking for a way around Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994).  We infer that motive because the opinion certifying the question gave the false impression that no prior West Virginia law existed on this question.  McNair v. Johnson & Johnson, 694 F. Appx. 115, 120-21 (4th Cir. 2017).  It didn’t work. See McNair, slip op. at 7, 14-17 (citing and relying upon In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 944 (6th Cir. 2014) (applying West Virginia law), and Meade v. Parsley, 2009 WL 3806716 (S.D.W. Va. Nov. 13, 2009)).

McNair (with a couple of justices dissenting – no other opinions yet), reaffirmed the traditional limits – indeed the entire rationale − of product liability as making sure that manufacturers (and not others) are responsible for defects (and negligence) in products from which they profited.  Innovator liability ““would sever the connection between risk and reward” . . . that forms the basis of products liability law.”  Slip op. at 24 (quoting defendants’ brief).

[S]trict liability has only been applied to a manufacturer, seller, or distributor of the product in question.  In other words, a plaintiff cannot recover damages in a strict liability action against the defendant, in the absence of showing that the defendant either manufactured or sold the product that allegedly injured the plaintiff.

Id. at 10 (citation, footnote, and quotation marks omitted).  There’s very good reason for this limitation:

[T]his Court, as well as other courts, adopted products liability to place responsibility for the harm caused by a product on the party who profits from its manufacture and sale.  Because the brand manufacturer did not place the generic product on the market, it cannot spread the cost of compensating generic consumers by including the cost of insurance or judgments as part of the product’s price tag.

Id. at 24 (citations and quotation marks omitted).  Particularly in the case of prescription drugs,

If brand manufacturers become liable for injuries allegedly caused by generic drugs, significant litigation costs would be added to the price of new drugs to the disadvantage of consumers.  Further, the increase in litigation against brand manufacturers could stifle the development of new drugs, which would have negative health consequences for society.

Id. at 25 (citation omitted).  This logic applied to all theories by which a product manufacturer could be held liable.  Negligent misrepresentation likewise failed, for the reasons stated in Darvocet, supra, and Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014).  McNair, slip op. at 15-18.  As to general negligence, “all federal circuit courts that have considered the question have held, under the laws of different states, that a brand manufacturer does not owe a duty to a consumer who uses a generic drug.”  Id. at 18-19 (string citation omitted; see our scorecard for these cases).  “Any recognition of an outlier theory of liability permitting a generic drug consumer to bring an action against the brand manufacturer for an injury allegedly arising from the use of the generic drug would be plainly at odds with this public policy.”  Id. at 24.

McNair, further rejected plaintiffs’ attempt to distinguish between a defective product and a defective label:

[W]here necessary safety information is missing from a label, that makes the drug defective, not the label. . . .  [I]n Cardinal v. Elsevier Inc., No. MICV201104442, 2014 WL 10937406, at *3 (Mass. Super. Aug. 11, 2014), the court explained that “the label . . . is not the product, but a way in which a plaintiff can claim that the product is defective.” (citations omitted).  We agree with this reasoning, which is consistent with our own products liability law.  Here, the allegedly injury-causing product is the generic drug ingested by the consumer, not the warning label.

Slip op. at 13-14 (other citations and quotation marks omitted) (note: Bexis tracked down the Cardinal decision and sent it to Westlaw).

Ironically, the court’s prior learned intermediary-related outlier also figured into McNair’s most excellent result.  As we mentioned at the time, the West Virginia legislature reinstated the learned intermediary rule by statute. See W. Va. Code §55-7-30.  That statute just happened to be phrased in terms of a drug’s “manufacturer or seller”:

(a) A manufacturer or seller of a prescription drug or medical device may not be held liable in a product liability action for a claim based upon inadequate warning or instruction unless . . . [t]he manufacturer or seller . . . acted unreasonably in failing to provide reasonable instructions or warnings . . . to prescribing or other health care providers. . . .

Id. §55-7-30(a)(1) (quoted at McNair, slip op. at 23).  “[T]his statute incorporates this Court’s long-standing restriction of products liability to the manufacturer and seller of the allegedly injury-causing product.” Id. at 24.  Once again, the past excesses of West Virginia plaintiffs have come back to haunt them.

Nor was the McNair court influenced by plaintiffs’ argument that the common law should be distorted in order to allow plaintiffs to evade federal preemption as recognized in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).  Preemption is no reason to jettison traditional product liability principles:

Just as the Supreme Court refused to distort the Supremacy Clause in Mensing to prevent the undesirable result of providing immunity to generic manufacturers in failure to warn cases, we decline to distort our products liability law to hold a brand manufacturer liable for injuries allegedly caused by a generic drug that the brand manufacturer neither manufactured nor sold.  Like the Supreme Court, we find that the proper remedy for consumers harmed by generic drugs rests with Congress or the FDA.

McNair, slip op. at 27.  “[A] brand manufacturer does not choose for its warning label to accompany the drugs marketed by its competitors.  Instead, federal law mandates such a result. Id. at 25.

Thus, the Supreme Court of Appeals’ syllabus (the binding precedent under West Virginia practice) reads:

There is no cause of action in West Virginia for failure to warn and negligent misrepresentation against a brand-name drug manufacturer when the drug ingested was produced by a generic drug manufacturer.

Slip op. at syllabus, point 4.

What a way to come home from DRI Drug and Medical Device.