We're not keen on taking potshots at law review articles. As we have mentioned more than once, we usually find the first part of lawreview articles, the analysis of the case law, to be useful. But the partof the article proposing some new approach usually contains more twaddle than logic. Sometimes that twaddle becomes law somewhere. When itdoes, it usually turns out badly. (DES market-share liability,anyone?) Still and overall, law reviews confer a benefit on theprofession for which we are grateful. We are particularly reluctant togripe about student-authored law review notes. Those notes are frequentlyhelpful in collecting relevant authorities. If nothing else, they help usmake our string-cites stringier. Those notes also signify somethingunique to the law – how students can make valuable intellectual contributionsto a profession they will soon be joining. Writing a law reviewarticle is hard work. It is also typically a thankless task.
Maybe this makes us grinchy, but we are unlikely toextend thanks for a recent student law review note that blows kisses at ourbête noire, the wretched Conte decision. The article is called""Picking Up the Tab for Your Competitors: Innovator Liability afterPliva v. Mensing." It is in the current issue of the George Mason LawReview. We are disappointed that the article concludes that the SupremeCourt's Mensing decision should prompt courts to embrace the Conte error. Not to apply too broad a brush to any institution of higher learning, but wenormally think of George Mason as a place full of right-thinking folks. To saythe least, the article arrives as an unpleasant surprise. Sure, thearticle takes a position that is bad for our clients. But it is also badpolicy and bad law. The very title, by referring to picking up the tabfor one's competitors, reveals that something is amiss. Nevertheless, thearticle is an interesting read and we congratulate the student on thepublication. We offer greetings at the beginning of what we hopewill be a splendid career.
We were not intending to talk about the George Masonarticle at all today. Tomorrow we will go through it and submit severalrespectful points of disagreement. But today’s case, Hogue v. Pfizer,Inc., 2012 WL 4466609 (S.D. Ohio Sept. 27, 2012), all by itselfoffers a pretty good a refutation of the article, so consider this report apreview of tomorrow’s more scholarly recitation.
We will make no bones about it; we like the Hogueresult. Yet another case rejects the Conte theory of innovatorliability. Add it to our Pioneer Defendant scorecard. Still, law is about more than results. It isabout how courts get to those results. We cannot help but notice that theGeorge Mason law review article seems even more result-oriented thanusual. The author is not the first to squirm over Mensing's consequencethat generic consumers might lack remedies available to brand consumers. Even if that seems an odd result, it is no reason to do violence to basic,well-settled principles of product liability law. More to thepoint, we are not sure how bizarre the disparate treatment really is. Webet most consumers would bargain away the right to pursue certain legalremedies in return for lower prices. We know that is so because people dothat every day when they purchase limited tort automobile insurance policies. No, that explicit bargain has probably not taken place with generic drugs, andmaybe some day we will write a law review article about how it could. Thepoint is that such a trade-off makes sense. By contrast, sticking abrand manufacturer with potentially perpetual liability (even if it ceasesselling the branded product) for injuries caused by competitors seemsunfair. Even the author of the article seems a little troubled by theincongruity of it all. Ultimately, the article proposes a legislative fixthat would permit generics to change their labels unilaterally. Butmeanwhile, let's have some bad law.
One other thing before we get to the Hogue case: the central error in the George Mason article resides in the notion thatMensing has undermined the logic of those cases that had rejected Conteliability. It is true that in some of those cases the courtreasoned that generic consumers could pursue remedies against genericmanufacturers, a possibility now foreclosed by Mensing. But thosecases also had to wrestle with a particular state's product liability law, andthat law, unless it is Martian, will limit product liability to a defendantthat actually made or sold the product in question. Simply stating thatlimitation makes clear its reasonableness. Any person blessed with commonsense will see that someone who made a product different from the one thatallegedly hurt the plaintiff has no business being sued. But let'ssuppose that someone not so blessed, though blessed with a license to practicelaw, will be clever enough to point out that the law abounds with exampleswhere people (or companies or partnerships) have been found liable to thirdparties. Notions of foreseeability drive the analysis. For example, anaccountant rendering a statement to a company might face a fraud or securitiessuit by an aggrieved investor. True enough. But the accountant didnot merely foresee that the statement would be relied upon by third parties, heor she knew that to be the case. And now you will say that a brand manufacturerknows its label will be relied upon by doctors prescribing the genericmedicine. That hardly constitutes a gotcha. Much of the value of theaccountant statement is that it will be relied upon by third parties. That is part of what the company is paying for, right? By contrast,even if a brand manufacturer knows that third-parties (prescribers of generics)will indirectly rely on its label, it derives no benefit from thatreliance. Indeed, brand manufacturers are damaged by the fact thatgeneric manufacturers can free-ride on the science and on the label. Butthere is another crucial difference. Accountants do not get caught in thepincers of product liability theories, including strict liability. Itmakes no sense to take products liability law, which is animated by particularfacts and policy concerns about product distribution and cost-spreading, andthen graft onto it doctrines from the general law of deceit that make no sensein such a context. That is especially so when the state's product liabilityregime makes clear that product liability shall attach only to the maker orseller of the specific product in question. Foreseeability should not bea fig-leaf to cover up perversions of law, science, and marketplace realities.
Now we are rambling.
Let’s turn to last week’s case of Hogue v. Pfizer, Inc.,2012 WL 4466609 (S.D. Ohio Sept. 27, 2012), where the court refused toembrace Conte, even in the wake of Mensing. The plaintiff allegedthat she suffered from tardive dyskinesia as a result of ingesting genericmetoclopramide. The defendant that manufactured the brand name version(Reglan) filed a motion for summary judgment. The court granted thatmotion because the Ohio Product Liability Act (OPLA) displaces common law andexplicitly requires a plaintiff to prove that the defendant manufactured thespecific product that caused the injury. The OPLA provides that proofthat a manufacturer designed or made “the type of product in question is notproof that the manufacturer designed, formulated, produced, constructed,created, assembled, or rebuilt the actual defective product in the productliability claim. A manufacturer may not be held liable in a productliability action based on market share, enterprise, or industrywideliability.” Ohio Rev. Code section 2703.73(C) No matter whether youfavor Justice Scalia or Judge Posner in their recent incendiary debate overtextual analysis, that Ohio statute makes clear that only the manufacturer ofthe actual product used by the consumer may be haled into court. TheHogue court goes on to hold that “the Mensing decision has no bearingwhatsoever on the issue whether the Brand Defendants may be held liable underOhio Product liability law for injuries arising from the ingestion of genericmetoclopramide they did not manufacture.” Hogue, 2012 WL 4466609 at*5. The OPLA “precludes” the plaintiff’s argument that the brandmanufacturers “are subject to liability as inventors or primary manufacturersof metoclopramide as neither theory is an exception to the rule that aplaintiff must prove her injuries were caused by the actual product thedefendant manufactured.” Id. The plain words of Ohio law renderinnovator liability impossible. Odds are that you can find similar language inthe laws of most states in the union - you know, defining a seller as the one who sold the product the plaintiff says injured her or the manufacturer as the one who manufactured that product.
Interestingly, the law review article criticizes Mensingfor upsetting “the proper federalism balance between federal and statelaw.” But as the Hogue decision shows, a proper respect for federalisminevitably compels rejection of the Conte doctrine. If a state lawclearly imposes product liability only on the actual maker-seller of thespecific product at issue, a court has no business to rewrite or circumventthat state law. The Hogue opinion is sound. We doubt it will beoverruled by the Sixth Circuit. We know it cannot be overruled by a lawreview article.
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