Innovator Liability

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What follows is another of our occasional guest posts, this time by fellow Reed Smith attorney Danielle Devens.  As always with our guest posts, the author gets all the credit, and any blame, for the contents of his/her work.

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This week, a panel of the Missouri Court of Appeals issued an opinion allowing a plaintiff to maintain a small subset of warning-related claims against a generic drug manufacturer.  It also dismissed the claims against the brand name manufacturers, albeit reluctantly, pointing out the “inherent unfairness” of the supposedly “unjust result.” Finally, same opinion reversed the trial court decision dismissing plaintiff’s claims against a publisher of information disseminated by pharmacies, but only on statute of limitations grounds.  The case is Franzman v. Wyeth Inc., No. ED100312, slip op. (Mo. App. Aug. 26, 2014) [ed note: Now at 2014 WL 4210207, as of this morning].

The plaintiff allegedly took generic version of the drug Reglan from March 2002 through October 2005, at which point she allegedly developed tardive dyskinesia, a known risk of this drug.  She brought claims against the brand-name manufacturers, generic manufacturers, and a publisher.  In a prime example of litigation tourism, plaintiff is a Kentucky resident pursuing claims under Kentucky law who filed her suit in the notoriously plaintiff-friendly St. Louis, Missouri.  [Slip Op. at 2]

But even St. Louis was not that friendly to this plaintiff.  The trial court knocked out plaintiff with a one-two-three combination, dismissing all claims against:  (1) the generic manufacturers based on Mensing preemption; (2) the brand name defendants based on lack of legal causation because they did not make the product the plaintiff took; and (3) the publisher based on the Kentucky one-year statute of limitations.  Plaintiff appealed each ruling.Continue Reading Guest Post – Not Quite a One-Two-Three Punch

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The Alabama Supreme Court redecided Weeks v. Wyeth, Inc., No. 1101397, slip op. (Ala. Aug. 15, 2014), today.  It’s not all that much different than the original “Weeks Reasoning” decision that we excoriated here.  In fact, the first 54 pages of Weeks II (out of a “pithy” 145 pages, one observer noted) are almost verbatim identical to Weeks I.  So we simply reiterate here everything we said in our original post about what we’ll now call “Weeks I.”  Weeks II made only the following changes to Weeks I:

  • Changing “Wyeth Defendants” to “Wyeth” (causing a lot of spacing differences).
  • Adding footnote 2, trying to deny the magnitude of what the court has done – claiming not to “plow new ground.”  Positively Freudian, that.  This footnote would sound less defensive if it could cite some prior Alabama case doing even remotely the same thing.  It doesn’t, because no such opinion exists.
  • Spending a couple of pages distinguishing Pfizer, Inc. v. Farsian, 682 So. 2d 405 (Ala. 1996), a case in which it had equated fraud and product liability claims, essentially because, Farsian involved cognizable injury and Weeks involves, not a “defect,” but “what [defendant] said or did not say about [the drug].”  Weeks II, at 12.  Funny, that’s one spot on way of describing what’s otherwise known as a “warning defect.”
  • New footnote 6 admitting – contrary to new footnote 2 – that “this is the first time the highest court of a state has addressed the issue.”  Except they then admit that’s not so either, because of Huck v. Wyeth, Inc., ___ N.W.2d ___, 2014 WL 3377071 (Iowa July 11, 2014).  In an exhibition of sheer profundity, Weeks II distinguishes Huck because “Iowa law differs from Alabama law” in precisely the way they are changing Alabama law to become.
  • A non-substantive new paragraph break (the opinion could use a lot more) on page 46.

Continue Reading Breaking News: Weeks II – Lipstick (and Not All That Much) on a Pig

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This post is only from the Reed Smith (more properly, the non-Dechert) side of the blog.  It is updated whenever a relevant new decision is found.

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…

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The Sixth Circuit has just affirmed 99.9% of the defendants’ wins in the Darvocet litigation.  The result is the biggest one-two punch (generic preemption/no non-manufacturer liability for the innovator drug) decision to date.  The opinion involves 68 plaintiffs and the law in 22 states.

Here’s a link to the opinion, which is encaptioned In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, Nos. 12-5368, et al. (6th Cir. June 27, 2014).

Here’s a quick summary:Continue Reading Breaking News: Big Darvocet Appellate Win – Multistate One-Two Punch

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Happy Birthday LEXIS/NEXIS, whose legal research service went up on this date back in 1973.  There’s no doubt that LEXIS/NEXIS has made our professional lives considerably easier.  We’ve long since given up our campaign to persuade young lawyers to venture beyond computerized research.  What’s the point of suggesting that lawyers occasionally cuddle up with digests…

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This post is not from the Dechert side of the blog, since they are involved in Reglan litigation.

Last evening, just before quitting time on the East Coast, we found the Sixth Circuit’s affirmance of the Rule 12 dismissal (that means no expensive discovery necessary) of seven Reglan cases under Tennessee Law.  See Strayhorn v. Wyeth Pharmaceuticals, Nos. 12-6195, et al., slip op. (6th Cir. Dec. 2, 2013).  The court also affirmed summary judgment against another set of defendants – affiliated with the original innovator manufacturer.

Because of that, we call this type of result a “one–two punch” case.  That means that the plaintiffs – who took the generic version of the drug only – are:  (1) knocked out of the box against the generic manufacturer by preemption under PLIVA v. Mensing, 131 S. Ct. 2567 (2011), and Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013); and (2) barred from suing the original innovator manufacturer of the drug by the very simple and basic fact that the plaintiff never used that defendant’s product.

First, the generic side:

Plaintiffs had filed the usual kitchen-sink type complaint alleging everything from design defect to consumer fraud.  Plaintiffs abandoned consumer and unjust enrichment claims, but appealed dismissal of everything else.  Strayhorn, slip op. at 7.

They lost.Continue Reading Lucky Seven − Strayhorn Affirmed

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It’s late and we want to go home, but we just learned that the “one-two punch” dismissal of the plaintiffs’ claims in Strayhorn v. Wyeth (that is, generic preemption plus no innovator liability in a generic case) has been affirmed by the Sixth Circuit applying Tennessee law.  More about it tomorrow, when we’ve had more…

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We were walking through San Francisco’s Chinatown the other day, and above an otherwise nondescript storefront we saw a sign that said “Fortune Teller.  Tells Past Present and Future.”  We are not sure what is worse:  Someone who claims the clairvoyant power of telling the “past” and “present,” or the poor sap who pays for the privilege of learning where he is and what has already happened to him.  It seems that telling the present would get somewhat tedious and repetitive:  “You are sitting in a second floor apartment in Chinatown across from a woman who looks like Professor Sybill Trelawney from Harry Potter and the Prisoner of Azkaban.  That will be $100 please.”

Now, telling the future — that’s a keen trick, one that we would pay to see, and one that we attempt from time to time here at the Drug and Device Law Blog, such as when we predict (or encourage) the demise of judicial opinions that are particularly wrong headed and/or wrongly decided.  You might have already guessed that we are leading up to yet another post on Conte v. Wyeth, 158 Cal. App. 4th 89 (2008), the wrongly reasoned and wrongly decided opinion from the California Court of Appeal that took the “product” out of “product liability.”  For those not keeping score, Conte held that a drug innovator can be liable for inadequate warnings in connection with a competitor’s generic version of the drug.  That is to say, a drug manufacturer can be liable for injuries alleged caused by a product it did not make and did not sell.  Holy tarot cards!  The fortune teller nearly fell off her chair when she saw that in our past.

Fortunately, Conte appears to have a future no brighter than another notorious California opinion that bent product liability and expanded liability for questionable reasons — Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980).  Sindell and its innovation known as market share liability was big news when it came out in 1980, and it was still making waves when we took Torts in law school in the early 1990s.  Today, 33 years after Sindell hit the books, we think it is safe to say that the opinion has had little lasting impact on the product liability landscape, and we doubt that it occupies any space in law school curricula other than as an interesting historical novelty.
Continue Reading New York Rejects “Innovator Liability”: The Future Of Conte Looks Dim

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