In Schrock v. Wyeth, Inc., --- F.3d ---, 2013 WL 4529359 (10th Cir. Aug. 28, 2013), the U.S. Court of Appeals for the Tenth Circuit joined the growing list of federal circuit courts to have rejected plaintiffs’ arguments that brand-name drug manufacturers can be liable for injuries allegedly caused by the generic version of their drug.

The Schrocks brought tort claims under Oklahoma law against both generic and brand-name manufacturers after Mrs. Schrock allegedly developed tardive dyskinesia from taking generic metoclopramide. Affirming the District Court’s grant of summary judgment dismissing the claims against the branded company, the Tenth Circuit predicted that the Oklahoma Supreme Court, “consistent with the trend among courts nationally and Oklahoma law in general[,]” would not find brand-name manufacturers to owe a duty to consumers of generic drugs.  Id. at *7. For strict liability, negligence, and breach of warranty claims, Oklahoma courts generally require a defendant to have some connection with the product, through manufacture, sale, or distribution. Id.

Plaintiffs also argued that the branded companies improperly concealed defects in the product and had a general duty to speak up about the defects. But the court rejected that argument, reasoning that liability still requires some relationship between the plaintiff and the defendant which creates a duty between the parties. Id. at *8. The court thus found no liability for misrepresentation, fraud, and failure-to-warn claims because a manufacturer cannot be liable for concealing a defect in a product the plaintiff did not purchase. And the court commented, in looking to “the general weight and trend of authority in the relevant area of the law,” that “the courts of other states have overwhelmingly rejected the very theory advanced by the Schrocks.” Id. at *10.

Despite plaintiffs’ continuing efforts to expand this area of tort law, the Tenth Circuit thus joined the Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits in rejecting so-called “innovator liability.”