In Dolan v. Smithkine Beecham Corp. (N.D. Ill 2014), Judge Zagel of the Northern District of Illinois just held that a brand name drug manufacturer could be liable for design and warning defects in a generic manufacturer’s product under Illinois law.  Prior to this case, the clear trend had been to reject claims based on “innovator liability,” because they violate a basic tenant of product liability law:  that the responsible party must have sold the injury causing product. 

 In Dolan, the plaintiff claimed that her husband had committed suicide after ingesting paroxetine, a generic version of Paxil. She sued Glaxosmithkline (“GSK”), the manufacturer of Paxil, under negligence and strict liability theories. Dolan argued that GSK was responsible because the generic drug’s design and warnings were based on those of Paxil, as required by Federal Law.

 The court entered summary judgment on the strict liability claims, but declined to dismiss the negligence claims.  In so doing, the court reasoned that because the generic drug design and warning label was legally required to be identical to the brand name, in fact GSK did design and label the generic drug.  The court noted that “nothing in Illinois common law compels a court to construe Plaintiff’s common law negligence claims as product liability claims.”  Additionally, it found that Illinois law did not limit negligence liability to those in the chain of distribution. 

Now the question is: will innovator liability gain momentum in other jurisdictions, or will it be dismissed as a quirk of Illinois negligence law?