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Liability of Brand Name Products for Injuries Involving Generics



Can a Brand Name Product Be Held Liable for Injuries Caused by a Generic Competitor Product?

The simple answer to that question is possibly—and in California, absolutely yes. In 2008, an appellate court in the litigation-friendly state of California made a landmark decision when it issued its opinion in Conte v. Wyeth, Inc. The full published opinion can be found at 85 Cal. Rptr. 3d 299 (Cal. Ct. App. 2008). The Conte case stands for the unprecedented holding that makes manufacturers of brand name prescription medications potentially liable for injuries that were caused by ingestion or consumption of generic equivalents of the drugs at issue. In Conte, a consumer of a generic drug alleged fraud and negligent misrepresentation on the part of Wyeth, Inc., the manufacturer of the equivalent brand name prescription drug in the marketplace, even though the brand name product was not purchased or consumed by the plaintiff.

The Landmark Decision of the California Appellate Court in Conte v. Wyeth, Inc.

The California appellate court in the Conte case overruled the lower court's summary judgment ruling in Wyeth's favor. The appellate court opined that a brand name prescription drug manufacturer such as Wyeth, Inc. had a common law duty to use due care in its product warnings and labeling. The court further held that this duty extended to consumers of the brand name product and also to consumers and patients whose doctors and medical providers foreseeably rely on the name brand product's information in making their prescriptions to patients who may ultimately choose a generic equivalent of the same drug.

Has the Conte Decision Gained Momentum Within California?

Since the 2008 Conte decision was issued, the California appellate court's ruling has predictably been accepted and followed within the state of California. Specific to California, the Conte decision is clearly gaining ground. For example, in the Dorsett v. Sandoz, Inc. case [see 699 F. Supp. 2d 1142 (2010)], the federal district court applied the Conte case to make a holding that an amended complaint could add a brand name manufacturer to the list of defendants, even after the running of the applicable statute of limitations because of the relation back doctrine and its application to the date of filing of the original complaint, as well as to the principle of tolling. That federal court relied on the premise that all courts had previously denied liability of brand name drug manufacturers for injuries related to generic drug equivalents. However, with the advent of the Conte decision, that denial of liability was overturned, and plaintiffs first learned that causes of action may exist against brand name manufacturers.

Has the Conte Decision Gained Momentum in States Outside of California?

However, other jurisdictions outside of California have rejected the ruling, if not declined to follow the decision. The Eighth Circuit, Middle District of Florida, Southern District of West Virginia, Southern District of Texas, and Nevada federal district court have all departed from the landmark and ground-breaking precedent established by Conte. These jurisdictions were uncomfortable with the California court's stretching of foreseeability, with holding brand name defendants liable for the contents of warning labels of generic drugs over which they had no control, and with the anomaly presented by the ruling and its contradiction of local laws and derivation from local public policies. Even so, defendants will have to be vigilant in guarding against attempts of future plaintiffs to expand the scope of tort liability within the realm of name brand and generic prescription drugs.