We say “sort of” because the Philly court was applying Washington law in Madden v. Teva Pharmaceuticals USA, Inc., 2012 Phila. Ct. Com. Pl. LEXIS 293 (Oct. 1, 2012). It would have been nice to get a good anti-Conte holding under Pennsylvania law, but we will take Conte-bashing wherever we can get it. Moreover, with all the criticism of Philly courts, it’s nice to see a decision that makes sense from the ground up. Here, the brand manufacturer, Sanofi, prevailed on its preliminary objections (Pennsylvania-speak for a motion to dismiss) to claims for negligence and negligent misrepresentation. Judge Tereshko affirmed that dismissal, and his opinion is interesting in a number of ways, not only on Conte, but on choice of law.  

Madden is an Ambien sleep-driving case, and a sad one at that. The plaintiff was prescribed Ambien in Everett, Washington. Brand name Ambien is manufactured by Sanofi. The plaintiff filled the prescription for the generic version, manufactured by Teva, in Redding, California. That is where the plaintiff ingested the drug, got into his car one night, and crashed into a tree and electric pole at high speed. The plaintiff filed a product liability complaint (including claims for negligence and negligent misrepresentation) against both brand and generic defendants, and argued that California law applies. We can guess why the plaintiff wanted California law, but we have no idea why the case was filed in the Philadelphia Court of Common Pleas. The generic manufacturer, Teva, won a motion for judgment on the pleadings (presumably on Mensing grounds) and was dismissed from the case. Judge Tereshko's Madden opinion deals with the brand manufacturer's attempt to get out of the case.

Pennsylvania has abandoned the traditional place-of-injury approach in favor of a flexible, multi-factor approach. Those factors include place of significant relationship, place of injury, place of conduct causing the injury, domicile of parties, and place where the relationship is centered. Not surprisingly, the plaintiff emphasized that the ingestion, accident, and injury all took place in California. But the Madden court reasoned that “the entire connection between Plaintiff and Sanofi, if any, begins and ends in Washington, and any conduct on the part of Sanofi that allegedly caused injury to Plaintiff would have therefore occurred in Washington.” Madden, 2012 Phila. Ct. Com. Pl. 293, *9. Query whether the choice of law analysis would be different for the generic manufacturer. When you think of it, it really is true that the brand name manufacturer’s connection to the plaintiff was only in Washington. It did not manufacture the drug that was ingested in California.

For the Madden court, the key event was the writing of the prescription, which took place in Washington. With the learned intermediary doctrine, the issue is the adequacy of the warnings given to the doctor. Washington has “a significant interest in ensuring that its physicians receive adequate information regarding the risks of products that they prescribe, thus protecting physicians in the State of Washington from increased liability, thus protecting physicians in the State of Washington from increased liability and insurance premiums that may ultimately be passed on to consumers in the form of increased healthcare expenses.” Id. at *11. It turns out that that sort of hortatory purpose language in the Washington statute played a significant role in the court’s choice of law analysis. The purpose of the Washington Product Liability Act (the WPLA) was “’to address a liability insurance crisis which could threaten the availability of socially beneficial products and services.’” Id., quoting Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 850 (1989).

Want to guess which way that policy cuts in terms of the Conte analysis?

The Madden court observes that “[p]ermitting the significant expansion of liability that Plaintiff is seeking in this case would be in direct contrast to the goal of the WPLA and would only provide further disincentives to innovation and development as well as increased costs for consumers.” Id. at **11-12. Under the WPLA, product liability claims can be brought only against the manufacturer or seller of the “relevant product.” See Wash. Rev. Code sections 7.72.010(3)-(4). The“relevant product” consists of “the product or those component parts that actually caused the injury.” Madden, 2012 Phila. Ct. Com. Pl. 293, *14. Sanofi, the brand manufacturer, did not manufacture the relevant product.

The plaintiff argued, as plaintiffs have argued in a number of recent cases (it must be part of the plaintiff playbook), “that federal law supports the notion that a pharmaceutical manufacturer can be liable for a product it did not manufacture or sell.” Id. The argument cobbles togetherLevine (limiting preemption of failure to warn claims against brand manufacturers) and Mensing (preempting state law claims against generics). The plaintiff’s argument (which is beginning to acquire an aroma of desperation almost as strong as its stink of stupidity) did not persuade the Madden court. At this point, the Madden court notes that“courts across the country have overwhelmingly refused to allow claims against the manufacturer of a name-brand medication for damages allegedly caused by the use of another manufacturer’s generic-equivalent medication on both legal and policy grounds.” Id. at *16.

Note that we said “notes.” Early in our career, we worked with a crusty partner who was very particular about which verbs we could use when we described what courts did. It was verboten to say that a court “found” something when we were talking about a legal holding. Courts “found” only facts. Similarly, when discussing a court’s legal analysis, we could say that a court “reasoned,” “observed,” etc., but we could not say “noted” unless we were quoting a footnote. Yes, in our salad days we worried over this sort of thing. Anyway, the Madden court actually did supply a footnote that says, “To date, more than 40 cases in approximately 20 states have held that a name-brand manufacturer is not liable for injuries allegedly caused by the use of a generic manufacturer’s product.” There then follows a long, long string-cite, the kind that usually induces narcolepsy. But wake up, because this is a very good, very useful footnote. Bexis suspects that the string-cite can be traced back to our Conte scorecard, based on the format and the inclusion of at least one relatively obscure case. We certainly do not mind if one of the parties or Judge Tereshko borrowed from our handiwork. You should do the same.

So another win for a defendant and another rejection of Conte. At the risk of being soporific, we’ve been writing a lot about that lately. Perhaps the Conte nightmare will soon be over.