It's tough enough dealing with a competitor making a cheaper copy of your product. So how would you feel if someone got hurt using the copy blamed you -- in a lawsuit.
The case, Conte v. Wyeth Inc., allowed a lawsuit against Wyeth even though the plaintiff never took any product made by Wyeth and only took a product made by a generic manufacturer. Learn more here.
The court reversed the lower court's summary judgment motion and allowed the lawsuit to proceed, stating:
We hold that the common law duty to use due care owed by a name-brand prescription drug manufacturer when providing product warnings extends not only to consumers of its own product, but also to those whose doctors foreseeably rely on the name-brand manufacturer's product information when prescribing a medication, even if the prescription is filled with the generic version of the prescribed drug.
In many cases, this particular lawsuit by a plaintiff in a California court against a drug maker would be pre empted by federal law. The U.S. Supreme Court recently held that for medical devices, federal law preempts state law (Medtronic v. Rigel). However, this court ducked that issue. The court said there was no evidence that the doctor relied on the packaging of the generic manufacturer, so the generic was dismissed from the cases. However, since the question of whether the doctor relied on Wyeth's labeling was a factual question, the court allowed the case to proceed to trial.
The Drug and Device Law Blog has a take on the case and its implications here. One excerpt: "Look for misrepresentation claims to skyrocket in California. Look for contribution/indemnity claims brought by pioneer manufacturers against generics to proliferate as well."