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Already Out of Date....

By James M. Beck and Mark Herrmann

That's us.

At least, that's what blog reader Geoff Klingsporn over at Davis, Graham just told us about our new Conte/generic drug non-liability scorecard. We're not offended, because the reason for our falling short is the best, a new decision - from West Virginia this time - throwing out yet another attempt by a plaintiff to hold a branded drug manufacturer liable for a supposed labeling defect in a generic drug it never made. The new case is Meade v. Parsley, C.A. No. 2:09 -cv-00388, slip op. (S.D.W. Va. Nov. 13, 2009). The best part of Meade? It's explicit rejection of Conte, of course:

So far, Conte, which recognized but declined to follow Foster, is the only decision in several like actions that has allowed the plaintiff to proceed against [a brand-name defendant] when only the generic version of the drug was ingested. . . . Inasmuch as the remaining claims against [the brand-name defendants] require a duty of care to the plaintiffs or proximate cause, summary judgment is proper as to [them].

Slip. op. at 9 (discussion of Foster omitted).

Keep it up guys. We hope Conte gains even less traction than New Jersey's oft-rejected DTC exception to the learned intermediary rule.

Full post as published by Drug and Device Law on November 16, 2009 (boomark / email).