In the Mid-Atlantic this week, unless your roots are deep, they’re frozen. After a balmy sixty degree temperature on New Years Day, we were hit by our first snowstorm of the winter. Like so many others, this blogger’s family has had to cancel almost all of our vacation plans. So, on what should have been the first day back to school for teens, the last thing we needed was an excuse to dig deeper into the roots that we grew up on over winter break. We watched excessively, we ate excessively, we ate Parcheesi, Liverpool rummy, and the Blockbuster Movie game. Fortunately, the good weather was suitable for walks, but it was a lot of conviviality. Enough that we were all eagerly awaiting a repotting on new ground. And that’s when nature decided we needed one more day.
While the roots that have kept us glued to the sofa over the past week are the ones we can’t wait to lose, there are some roots – the common roots – that are meant to be nurtured, nurtured and enriched. Because it’s the roots that protect us from things like the responsibility of innovators. At least that’s what the court says in RSB c. Merck & Co., Inc., 2021 WL 6113765 (ED Wis. 27 December 2021). The applicant is a minor who used the asthma medicine Singulair from 2010 to 2012 when it was switched to the generic version. Identifier. to 1. The applicant alleges that the drug caused him various psychiatric disorders which required hospitalization. Identifier. The plaintiff’s complaint alleged causes of action for design flaw, strict liability, strict liability to warn and negligence against the brand name drug manufacturer. The brand-name maker has sought summary judgment for any harm allegedly caused by the generic drug. This was an important issue in the case as there is a dispute as to whether the claimant experienced any symptoms while taking the brand name drug. Identifier.
The plaintiff conceded that he could not uphold the claims for failure to design strict liability or failure to warn against the brand manufacturer for injuries caused by the generic drug. But he argued that his claim of negligent misrepresentation was viable on the grounds that the brand maker was responsible for the misrepresentation in generic labeling. Identifier. to * 2-3. The court began its analysis with Wisconsin’s product liability law which was enacted “to return tort law to its” historic common law roots. ” Identifier. to * 3 (citing Wis. Stat. Â§895.046 (1g)). Under this law, complainants have two avenues of redress: one when the complainant can identify the specific product that caused the alleged harm and another when it cannot. When the specific product is known, the applicant must prove that “the manufacturer, distributor, seller or promoter of a product has manufactured, distributed, sold or promoted the specific product alleged to have caused injury or harm to the product. applicant â. Identifier. (citing Wis. Stat. Â§895.046 (3)). If the applicant cannot identify the specific product, the law allows for a theory of contribution to risk. Username. But, this avenue is only available when “the product has been distributed or sold without labeling or any distinguishing characteristic which identified the manufacturer, the distributor, the seller or the promoter”. Identifier. to 3. The generic drug had labeling that identified its manufacturer.
The plaintiff’s original argument was that the law should not apply at all to his negligent misrepresentation claim because it was not a product liability claim. A fairly standard argument in the business of innovator liability. But Wisconsin law applies to all claims that allege that a product has caused personal injury – including claims based on the promotion, instructions and warnings, and “all related or independent claims.” Identifier. at 4 o’clock. Thus, even though the plaintiff’s negligent misrepresentation claim was not directly covered by law, it relates to the plaintiff’s claims for design flaw and failure to warn and is therefore covered by law. Identifier. at 4 o’clock.
After deciding that the law applies, the court also concluded that it was a known and specific product. The plaintiff can only proceed by the first way and can therefore only bring an action against “the manufacturer, the distributor, the seller or the promoter” of the product which would have caused the damage. This is the generic product that the defendant did not manufacture, distribute, sell or promote. Although the plaintiff tried to argue that the defendant fell into the latter category. That by promoting the brand name drug, the defendant also promoted the competing generic version. The court recognized the illogicality of the argument:
A company, whatever the precarious situation in which it finds itself, does not intend to promote a competitor’s product to the detriment of its own sales. It is the same here. [Defendant] does not promote the generic [drug] or the chemical composition of the drug when it promotes [the brand]; he is promoting. . .. the branded version of the drug produced by [defendant]. To assert that [defendant] promotes generic [drug] is to assert that [defendant] promotes the products of its direct competitors to the detriment of its own product. This line of logic contradicts basic business principles and would make [the statute] without meaning.
Identifier. at 5.
Therefore, the plaintiff’s negligent misrepresentation claim against the brand-maker for injuries allegedly caused by the generic drug was dismissed, resulting in the innovator’s withering away of liability before it was released. had the chance to take root.
This article was written by Michelle Yeary of Dechert LLP.