Photo of Michelle Yeary

In the Mid-Atlantic this week, unless your roots run deep – they are frozen.  After a balmy sixty degrees on New Year’s Day, we got hit with our first snowstorm of the winter.  As did so many, this blogger’s family had to cancel nearly all our holiday plans.  So, on what should have been the teenagers’ first day back to school, the last thing we needed was an excuse to deepen the roots we grew over winter break.  We binge-watched, we binge-ate, we binged Parcheesi, Liverpool rummy, and the Blockbuster Movie game.  Fortunately, the nice temps did lend themselves to walks, but it was a whole lot of togetherness.  Enough so, that we were all looking forward to some re-potting in new terrain.  And that is just when nature decided we needed one more day.

While the roots that kept us glued to the sofa over the past week are ones we are eager to shed, some roots – common law roots – are meant to be tended, nourished, and enriched.  Because those are the roots that protect us from things like innovator liability.   At least so said the court in R.S.B. v. Merck & Co., Inc., 2021 WL 6113765 (E.D. Wis. Dec. 27, 2021).  Plaintiff is a minor who used the asthma drug Singulair from 2010 to 2012, at which time he was switched to the generic version.  Id. at *1.  Plaintiff alleges that the drug caused him to experience various psychiatric disorders that required hospitalization.  Id.  Plaintiff’s complaint alleged causes of action for strict liability design defect, strict liability failure to warn, and negligence against the manufacturer of the brand name drug.  The brand manufacturer moved for summary judgment for any injury allegedly caused by the generic drug.  This was an important issue in the case because there is a dispute regarding whether plaintiff experienced any symptoms while on the brand name drug.  Id.

Plaintiff conceded that it could not maintain claims for strict liability design defect or failure to warn against the brand manufacturer for injuries caused by the generic drug.  But he argued his negligent misrepresentation claim was viable on the grounds that the brand manufacturer was responsible for the misrepresentations in the generic labeling.  Id. at *2-3.  The court started its analysis with the Wisconsin products liability statute which was enacted “to return tort law to its ‘historical, common law roots.’”  Id. at *3 (citing Wis. Stat. §895.046(1g)).  Under that statute, plaintiffs have two avenues for relief – one for when plaintiff can identify the specific product that caused the alleged harm and another for when he cannot.  When the specific product is known, plaintiff must prove 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.”  Id. (citing Wis. Stat. §895.046(3)).  If plaintiff cannot identify the specific product, the statute allows for a risk-contribution theory.  Id. But, this avenue is only available when “the product was distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter.”  Id. at *3.  The generic drug had labeling that identified its manufacturer.

Plaintiff’s initial argument was that the statute should not apply at all to his negligent misrepresentation claim because it was not a products liability claim.  A fairly standard argument in innovator liability cases.  But the Wisconsin statute applies to all claims that allege a product caused personal injury – including claims based on promotion, instructions, and warnings and “all related or independent claims.”  Id. at *4.  So, even if plaintiff’s negligent misrepresentation claim was not directly covered by the statute, it is related to plaintiff’s claims for design defect and failure to warn and therefore encompassed by the statute.  Id. at *4.

Having decided the statute applies, the court also found this was a case of a known, specific product.  Plaintiff can only proceed under the first avenue and therefore can only bring a claim against the “the manufacturer, distributor, seller, or promoter” of the product that allegedly caused the harm.  Here that is the generic product which defendant did not manufacture, distribute, sell or promote.  Although plaintiff tried to argue defendant fell into that last category.  That by promoting the brand name drug, defendant also promoted the competing generic version.  The court recognized the illogicality of the argument:

A company, no matter what precarious position it may be in, does not intend to promote a competitor’s product to the detriment of its own sales. The same is true of here. [Defendant] is not promoting generic [drug] or the chemical composition of the drug when it promotes [the brand]; it is promoting . . .. the brand-name version of the drug produced by [defendant]. To assert that [defendant] is promoting generic [drug] is to assert that [defendant] is promoting the products of its direct competitors to the detriment of its own product. This line of logic belies basic business principles and would render [the statute] meaningless.

Id. at *5.

Therefore, plaintiff’s negligent misrepresentation claim against the brand manufacturer for injuries allegedly caused by the generic drug were dismissed – causing innovator liability to wither before it had a chance to take root.