Court Rejects Misrepresentation Claim Against Manufacturer For Ingestion of Others’ Generic Drugs

On July 29, the district court in the Eastern District of Kentucky dismissed several claims against Eli Lilly and Company (Lilly) in which the plaintiffs admitted that they could not prove that they ingested any product manufactured, sold, or distributed by Lilly. A copy of the opinion can be found here. This Multi-District Litigation relates to Darvocet, Darvon, and propoxyphene products, pain medications that the FDA stated in 2009 were linked to “fatal overdoses.”

In these particular cases, the plaintiffs conceded that they had no proof they ingested any product manufactured by Lilly. Rather, the plaintiffs argued “that a brand-name manufacturer may be held liable under a misrepresentation theory of liability to a plaintiff who ingested generic propoxyphene.” Applying Georgia and Texas law, the court cited to the 4th Circuit’s decision in Foster v. American Home Products Corp., “which rejected ‘the contention that a name brand manufacturer’s statements regarding its drug can serve as the basis for liability for injuries caused by another manufacturer’s drug.’” The court noted that the majority of courts have followed the 4th Circuit decision, which it concluded is consistent with Texas and Georgia law.

Although not specifically discussed in this decision, the court previously ruled that the misrepresentation claim stemmed from whether a product manufacturer owed a duty to a user of a generic drug manufactured by a different company. The majority position is that no duty exists, although there are some courts that have recognized that duty. Conte v. Wyeth, Inc.Kellogg v. Wyeth. In Conte, the court found that drug manufacturers “should reasonably perceive that there could be injurious reliance on its product information” by people who ingest the generic form of the drug.

Similarly, in Kellogg, the court stated: “[I]t is reasonably foreseeable that a physician will rely upon a brand name manufacturer’s representations — or the absence of representations — about the risk of side effects of its drug, when deciding to prescribe the drug for a patient, regardless of whether the pharmacist fills the prescription with a generic form of the drug.”

This split in authority will continue to require that drug manufacturers closely examine choice of law issues and critically assess whether a plaintiff can sustain such a claim. Additionally, when faced with decisions of removal of state-filed cases to federal court, manufacturers need to consider the impact of these decisions and assess whether it will fair better in state or federal court regarding this type of misrepresentation claim.

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