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Scorecard: Non-Manufacturer, Name-Brand Defendants In Generic Drug Cases

By James M. Beck and Mark Herrmann

Regular blog readers know how we feel about Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), review denied (Cal. Jan. 21, 2009) ? the case that held a brand-name drug manufacturer potentially liable for ?misrepresentations? even though it did not manufacture the drug that allegedly harmed the plaintiff. We criticized virtually every aspect of Conte here, here, here, and here. We gave Conte our nod as the worst judicial decision of 2008 in our field. Bexis wrote an amicus brief in support of the ultimately unsuccessful effort to get the California Supreme Court to review the Conte decision. In short, we thought Conte was bad news all around.

Last week we put up a guest post with some good news about Conte ? in the year since it had been decided, no other court had found its reasoning to be persuasive. Our guest posters observed:

For those keeping score, this makes 31 courts in 19 states that have refused to impose liability on a brand name drug manufacturer for injuries caused by its competitors? generic drugs.

We took that as a very subtle rebuke. It had to be subtle ? it?s our blog, after all.

But they have a point. After all, isn?t keeping score one of the things we do? We maintain current scorecards on drug/vaccine preemption, medical device preemption, cross-jurisdictional class-action tolling (if you don't know, don't ask), and no present injury plaintiffs.

Well guys, it worked ? you got us off our duffs. We haven?t put together a scorecard on a new topic in over a year, so that sounded like a good idea. What follows is a chronological list of every judicial decision we know of that addresses the issue of whether a name brand (also known as ?pioneer? or ?listed?) drug manufacturer can be liable in a suit where the plaintiff only took a generic version of that drug, which was manufactured and marketed by somebody else.

• Foster v. American Home Products Corp., 29 F.3d 165, 168, 171 (4th Cir. July 14, 1994) (applying Maryland law). Promethazine (Phenergan) case. Name brand manufacturer not liable under negligent misrepresentation theory.


• Flynn v. American Home Products Corp., 627 N.W.2d 342, 350-52 (Minn. App. May 15, 2001). Fenfluramine (Pondimin) case. Name brand manufacturer not liable under fraudulent misrepresentation, negligent misrepresentation, or consumer fraud theories.


• Beutella v. A.H. Robins Co., 2001 WL 35669202, at *2 (Utah Dist. Dec. 10, 2001). Metoclopramide (Reglan) case. Name brand manufacturer not liable under any (unspecified) theory.


• DaCosta v. Novartis AG, 2002 WL 31957424, at *8-9 (D. Or. March 1, 2002). Ergot alkaloid (Migranal) case. Name brand manufacturer not liable under strict liability, or fraud theories.


• Block v. Wyeth, Inc., 2003 WL 203067, at *2 (N.D. Tex. Jan. 28, 2003). Metoclopramide (Reglan) case. Name brand manufacturer not liable under negligence, negligent misrepresentation, fraud, conspiracy, or malice theories.


• Sloan v. Wyeth, 2004 Extra Lexis 202, at *3-12 (N.J. Super L.D. Oct. 13, 2004). Metoclopramide (Reglan) case. Name brand manufacturer not liable under fraud, negligent misrepresentation, fraudulent concealment, or consumer fraud theories.


• Sheeks v. American Home Products Corp., 2004 WL 4056060, at *1-2 (Colo. Dist. Oct. 15, 2004). Metoclopramide (Reglan) case. Name brand manufacturer not liable under negligent misrepresentation or statutory products liability theories.


• Reynolds v. Anton, 2004 WL 5000272, at *?? [towards end of opinion] (Ga. Super. Oct. 28, 2004) (Westlaw doesn?t provide jump cites to state trial orders anymore, which ticks us off). Methylphenidate (Ritalin) case. Name brand manufacturer not liable under overpromotion or any other theory for failure of proximate causation.


• Kelly v. Wyeth-Ayerst Laboratories Co., 2005 WL 4056740, at *2-5 (Mass. Super. May 6, 2005). Metoclopramide (Reglan) case. Name brand manufacturer not liable under products liability, negligence, Restatement (Second) of Torts §323 (1965), negligent misrepresentation, breach of warranty, or consumer fraud.


• Tarver v. Wyeth, Inc., 2005 WL 4052382, at *2 (Mag. W.D. La. June 7, 2005), adopted, 2006 WL 1517546, at *2-3 (W.D. La. Jan. 26, 2006) Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability or negligent misrepresentation theories.


• Sharp v. Leichus, 2006 WL 515532, at *2-6 (Fla. Cir. Feb. 17, 2006), aff?d per curiam, 952 So.2d 555 (Fla. App. Jan 22, 2007). Metoclopramide (Reglan) case. Name brand manufacturer not liable under fraud, negligent misrepresentation, fraudulent concealment, or market share theories.


• Possa v. Eli Lilly & Co., 2006 WL 6393160, at *1, slip op. at 2-3 (M.D. La. May 10, 2006). Fluoxetine (Prozac) case. Name brand manufacturer not liable under statutory product liability theory.


• Colacicco v. Apotex, Inc., 432 F. Supp.2d 514, 539-43 (E.D. Pa. May 25, 2006), aff?d on other grounds, 521 F.3d 253 (3d Cir. 2008), vacated on other grounds, 129 S. Ct. 1578 (2009). Paroxetine (Paxil) case. Name brand manufacturer not liable under all (negligence, negligence per se, negligent misrepresentation, fraud, consumer fraud, infliction of emotional distress, or implied warranty) theories for lack of duty or causation.


• Goldych v. Eli Lilly & Co., 66 Fed. R. Serv.3d 799, 2006 WL 2038436, at *3-8 (N.D.N.Y. July 19, 2006). Fluoxetine (Prozac) case. Name brand manufacturer not liable under negligence, negligent misrepresentation, fraud, fraudulent concealment, or consumer fraud theories.


• LeBlanc v. Wyeth, Inc., 2006 WL 2883030, at *5-6 (W.D. La. Oct. 5, 2006). Amiodarone (Cordarone) case. Name brand manufacturer not liable under statutory product liability theory.


• Adamson v. Ortho-McNeil Pharmaceutical, Inc., 463 F. Supp.2d 496, 505 (D.N.J. Nov. 16, 2006), reconsideration denied, 2007 WL 604790 (D.N.J. Feb. 20, 2007). TriNessa (Tri-Cyclen) non-personal injury case. Name brand manufacturer not liable under consumer fraud theory for not advertising that generic drug was available more cheaply.


• Barnhill v. Teva Pharmaceuticals USA, Inc., 2007 WL 5787186, at *2-3 (S.D. Ala. April 24, 2007). Cephalexin (Keflex) case. Name brand manufacturer not liable under Restatement (Second) of Torts §402B (1965), strict liability, negligence, failure to test, failure to train physicians, express warranty, or implied warranty theories.


• Green v. Wyeth Pharmaceuticals, Inc., 2007 WL 6428717, at *1 (Ala. Cir. May 14, 2007). Metoclopramide (Reglan) case. Name brand manufacturer not liable under any (unspecified) theory.


• Clark v. Pfizer, Inc., 2008 Phila. Ct. Com. Pl. Lexis 74, at *20-32 (Pa. C.P. March 14, 2008). Gabapentin (Neurontin) non-personal injury case. Name brand manufacturer not liable under warranty theory. Name brand manufacturer could be liable under negligent misrepresentation or intentional misrepresentation theories for sums paid to generic manufacturers for off-label uses.


• Swicegood v. Pliva, Inc., 543 F. Supp.2d 1351, 1354-59 (N.D. Ga. April 2, 2008). Metoclopramide (Reglan) case. Name brand manufacturer not liable under strict liability, negligence, fraudulent misrepresentation, negligent misrepresentation, Restatement (Second) of Torts §324A (1965), concealment, or implied warranty theories.


• Pustejovsky v. Wyeth, Inc., 2008 WL 1314902, at *2 (N.D. Tex. April 3, 2008). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability, negligence, fraud, or misrepresentation theories.


• Stanley v. Wyeth, Inc., 991 So.2d 31, 33-35 (La. App. May 2, 2008). Amiodarone (Cordarone) case. Name brand manufacturer not liable under statutory product liability or negligent misrepresentation theories.


• Wilson v. Wyeth, Inc., 2008 WL 2677049, at *3-4 (W.D. Ky. June 30, 2008). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability or negligent misrepresentation theories.


• Morris v. Wyeth, Inc., 2008 WL 2677048, at *3-4 (W.D. Ky. June 30, 2008). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability or negligent misrepresentation theories.


• Smith v. Wyeth, Inc., 2008 WL 2677051, at *3-4 (W.D. Ky. June 30, 2008). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability or negligent misrepresentation theories.


• Westerlund v. Wyeth, Inc., 2008 WL 5592753, at *?? (N.J. Super. Law Div. Oct. 20, 2008). Amiodarone (Cordarone) case. Name brand manufacturer not liable under statutory product liability or any other theory.


• Mensing v. Wyeth, Inc., 2008 WL 4724286, at *5 (D. Minn. Oct. 27, 2008). Metoclopramide (Reglan) case. Name brand manufacturer not liable under negligent misrepresentation, misrepresentation by omission, fraudulent concealment, or constructive fraud theories.


• Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299, 309-311 (Cal. App. Nov. 7, 2008), review denied (Cal. Jan. 21, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under strict liability theory. Name brand manufacturer may be liable under negligent misrepresentation or fraudulent misrepresentation theories.


• Huck v. Trimark Physicians Group, 2009 WL 3760458, slip op. at 1-2 (Iowa Dist. Feb. 27, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under any (unspecified) theories.


• Cousins v. Wyeth Pharmaceutical, Inc., 2009 WL 648703, at *2 (N.D. Tex. March 10, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under any (unspecified) theories for lack of duty.


• Schrock v. Wyeth, Inc., 601 F. Supp.2d 1262, 1266- (W.D. Okla. March 11, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under any (unspecified) theory for failure of causation.


• Moretti v. Wyeth, Inc., 2009 WL 749532, at *3-4 (D. Nev. March 20, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under Restatement (Second) of Torts §§310, 311, 323 (1965), misrepresentation by omission, constructive fraud, negligent misrepresentation, or fraudulent concealment theories. Conte rejected as contrary to law and policy.


• Fields v. Wyeth, Inc., 613 F. Supp.2d 1056, 1060-61 (W.D. Ark. May 11, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability, strict liability, negligence, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, or implied warranty theories.


• Stoddard v. Wyeth, Inc., 630 F. Supp.2d 631, 633-34 (E.D.N.C. June 24, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under express warranty, implied warranty, negligence, negligent omission, negligent misrepresentation, negligent undertaking, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, or consumer fraud theories.
  
• Bartlett v. Mutual Pharmaceutical Co., ___ F. Supp.2d ___, 2009 WL 3126305, at *25 n.40 (D.N.H. Sept. 30, 2009). Sulindac case. Dictum recognizing "widespread rejection" of theories of "innovator liability."


• Burke v. Wyeth, Inc., 2009 WL 3698480, at *2-3 (S.D. Tex. Oct. 29, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability, negligence, strict liability, implied warranty, misrepresentation, fraudulent concealment, consumer fraud, or gross negligence. Conte rejected as anomalous and contrary to law.
• Meade v. Parsley, 2009 WL 3806716, at *2-3 (slip op.) (S.D.W. Va. Nov. 13, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under unspecified "many theories of liability." Conte is considered and rejected.
• Morris v. Wyeth, Inc., 2009 WL 4064103, at *4-6 (slip op.) (W.D. La. Nov. 23, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable under statutory product liability theory (within which all other causes of action are subsumed).
• Mensing v. Wyeth, Inc., ___ F.3d ___, 2009 WL 4111209, slip op. at 16-18 (8th Cir. Nov. 27, 2009). Metoclopramide (Reglan) case. Name brand manufacturer not liable for various common law torts including negligent representation and fraud.

Full post as published by Drug and Device Law on November 12, 2009 (boomark / email).