It’s tax week, so expect a lot of cases this week from that wonderful no-tax paradise, Delaware. With light traffic (iffy on I-95, to be sure), one can get from our office to Delaware in under a half hour. That’s a worthwhile trip for buying anything in triple or higher digits. It’s also a worthwhile trip if one hankers for decent court rulings. The Philadelphia Court of Common Pleas is a Hobbesian war of all against all, while Delaware courts are a calm, sensible embodiment of John Locke – protecting life, liberty, and the pursuit of property. They also do a pretty good job of protecting common sense. A recent example of that is Trower v. Janssen Pharmaceuticals, Inc., 2019 WL 1571834 (D. Del. April 11, 2019), where a Delaware federal court said No Thanks to the product liability doctrinal abomination known as innovator liability.

The plaintiff alleged that he developed gynecomastia, breast pain, and discomfort from ingesting generic risperidone. The SCOTUS Mensing case meant that the plaintiff was out of luck against the generic manufacturer. Aggrieved by this deprivation – just as Justice Sotamayor was in her Mensing dissent when she fretted that the majority opinion “strips generic-drug consumers of compensation when they are injured by inadequate warnings” – the plaintiff in Trower proposed that “the appropriate solution is to allow plaintiffs to maintain claims against brand name manufacturers for failure to warn, even when the plaintiffs ingested only the generic manufacturers’ products.” This modest proposal was premised on “two policy reasons: (1) it ensures drug labels are consistent and consumers adequately warned, regardless of whether a generic or brand name drug is dispensed by a pharmacist, and (2) imposing liability on brand name manufacturers better reflects what is actually at issue in failure to warn claims.” In addition to these policy arguments, the plaintiff pointed out that a couple of courts have actually bought this argument. One of those courts, of course, was the California Supreme Court. California is quite similar to Delaware, except in terms of size, taxes, weather, earthquakes, and the judicial embrace of common sense. California is the Beach Boys singing “Wouldn’t It Be Nice.” Delaware is George Thorogood explaining why he prefers to drink alone. We’re right there with George. (Except we aren’t because, you know, he wants to be alone.)

The defendant in Trower argued that Delaware law does not support imposing liability on defendants that did not make the allegedly harmful product. It is fundamental to product liability law in Delaware that “a plaintiff must plead facts that identify the allegedly defective product and the manufacturer of that product.” In re Benzene Litig, 2007 WL 625054, at *6 (Del. Super. Ct. Feb 26, 2007). It is also fundamental to product liability law in Delaware that “generic identification of a product is not enough to establish liability absent some other evidence that that generic product was the specific product of a defendant.” Lee v. A.C. & S., Inc., 1986 WL 15421, at *2 (Del. Super. Ct. Dec. 15, 1986).

Come to think of it, those are fundamental precepts in product liability law pretty much anywhere.

The plaintiff in Trower cited to just one Delaware case, Wilkerson v. Am. Honda Motor Co., 2008 WL 162522, at *2 (Del. Super. Ct. Jan. 17, 2008). In Wilkerson, the Superior Court held that a defendant may be liable for a plaintiff’s asbestos exposure from a third-party product if it was reasonably foreseeable that use of defendant’s product would result in use of the third-party product that would result in exposure to asbestos. Id. at *2. That sounds sort of close to putting a defendant on the hook for someone else’s product, but it really isn’t. As the Trower court observed, “[c]onsistent with other Delaware cases, Wilkerson requires that defendant produced the product at the center of the dispute.” Thus, there is no real authority in Delaware law for innovator liability.

That is particularly important in Trower, which involved a federal court. The Third Circuit, almost as much as Bexis, “disfavors district courts creating new state law while sitting in diversity.” Faced with this modesty principle, and faced with the absence of support in Delaware law for innovator liability, the Trower court concluded that “Delaware law does not support imposing liability on a brand name defendant for a generic manufacturer’s product.” Wouldn’t it be nice if all other courts were so sensible?

Then, as if to prove how Delaware always renders such good value, the Trower court went on to rule that the defendant was entitled to summary judgment on an entirely independent ground that the plaintiff did not establish that an additional warning would have changed the plaintiff’s physician’s decision to prescribe risperidone. None of the plaintiff’s physicians had been deposed for this litigation. That seems like a very odd choice by the plaintiff, and it left the court with no choice but to hold that the plaintiff could not “overcome Delaware’s learned intermediary doctrine.”