FRANCISCO – Imagine Taco Bell being sued by someone who got sick from eating food
Stone, president of the Civil Justice Association of California, used that example
when describing T.H. vs. Novartis Pharmaceuticals Corp., a case up for
appeal before the California Supreme Court.
The case is
another battle in the ongoing fight in the state over what constitutes grounds
for litigation in the drug industry, particularly when it comes to what a drug manufacturer
is liable for.
The petition for review of the case by the state Supreme Court was filed April 19 and granted June 8. According to the
case’s docket, the question to be argued before the court is: “May the brand name manufacturer of
a pharmaceutical drug that divested all ownership interest in the drug be held
liable for injuries caused years later by another manufacturer's generic
version of that drug?”
The case in question centered on an asthma drug taken by a woman who was
pregnant with twins. According to DrugAndDeviceLawBlog.com, the plaintiffs’ mother
was prescribed terbutaline – which was manufactured by Novartis until 2001 – to
help her with uterine contractions and premature labor while she was pregnant in
2007. Both those uses were off-label. The twins were born with autism, and
Novartis was sued instead of the company that made the drug the mother used
with the allegation that the drug’s use caused the autism.
The case was dismissed in trial court, but that decision was overturned
on appeal. According to a disposition in March from the state’s 4th
Appellate District, the appeals court concluded that the complaint could be
amended “for negligent
failure to warn and negligent misrepresentation based on acts or omissions by
Novartis prior to 2001.”
That was where Stone drew her example to the Mexican-food
“Can I sue Taco Bell when Chipotle made me sick? I didn’t eat the Taco
Bell taco; I ate the Chipotle burrito. But Taco Bell existed before Chipotle,
and Chipotle is copying Taco Bell,” she said.
In the 4th Appellate District disposition, that court used
the case of Conte vs. Wyeth as a guidepost. The 2008 case in the
state’s 1st District said that a brand-name drug
maker should “shoulder
its share of responsibility for injuries caused, at least in part by its
negligent … dissemination of inaccurate information” – even though the patient
in this case was affected allegedly by a generic version of the maker’s drug
that was made by another company, according to Leagle.com.
“In Conte vs. Wyeth, even though Wyeth did not make the product that the
plaintiff took, which is generally a necessary requirement prior to a
product-liability lawsuit, the court held that mere foreseeability was sufficient to create the duty
that would allow a lawsuit to proceed,” Stone said.
The Wyeth case remains a standard in California, even though, as Michael
F. Healy, a partner at Sedgwick LLP in San Francisco, wrote in 2011, more than
20 other states “have expressly rejected its holding.”
“Most of the
other states have found a much-more traditional and common-sense ruling that product
manufacturers have no duty to people who don’t buy their products,” Stone said.
“In other words, no, you can’t sue Taco Bell when Chipotle made you sick.”