First New York Court Rejects Controversial Drug Developer Liability Rule

In a controversial 2008 decision in Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (Cal. Ct. App. 2008), a California Court of Appeals held defendant drug developer, Wyeth, Inc., liable for inadequate warnings in connection with the plaintiff’s use of a competitor’s generic version of the gastrointestinal reflux drug Reglan. The court in Conte held “the common law duty to use due care owed by a name-brand prescription drug manufacturer when providing product warnings extends not only to consumers of its own product, but also to those whose doctors foreseeably rely on the name-brand manufacturer’s product information when prescribing a medication, even if the prescription is filled with the generic version of the prescribed drug.” The decision, which the California Supreme Court declined to review in 2009, was criticized for overextending product liability to a drug manufacturer for injuries allegedly caused by a product it neither made nor sold.

Recently, Judge Carol E. Huff of the New York State Supreme Court, New York County, had the occasion to consider a similar claim of liability in Weese v. Pfizer, Inc., 2013 NY Slip Op 32563(U) (N.Y. Sup. Ct. October 18, 2013). In Weese, the plaintiff, Torrie Weese, was prescribed and took the drug Sertraline, a generic form of Pfizer’s drug Zoloft, during pregnancy. Weese alleged the Sertraline caused her daughter to be born with serious heart defects. She claimed the Sertraline’s label did not adequately warn of the possibilities of birth defects, and she alleged Pfizer was liable for the inadequate warning because it issued an allegedly inadequate warning label with its original product, Zoloft.

Judge Huff, unlike the California Court of Appeals in Conte, found Pfizer had no duty with regard to the Sertraline. She held that while Pfizer had labeling and other duties with respect to its own drug Zoloft, its duties “should not extend to products and labeling over which it ha[d] no control, even if those products and labels mirror its own, because it ha[d] done nothing toward putting them in the hands of consumers.” While Judge Huff’s decision may seem like common sense, it is significant because it is the first decision in New York State to consider and reject the Conte rule, restricting product liability for drug manufacturers in New York State Courts to products it actually manufactured and/or sold. Other courts, both state and federal, have similarly criticized or rejected altogether the Conte rule.  If the trend continues, as it recently has in New York, drug innovators like Wyeth, Inc. and Pfizer, Inc. can maintain hope that the overbroad and ill-reasoned Conte rule will fall by the wayside.

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