California Supreme Court grants Firm client Novartis’s petition to review innovator liability and prior manufacturer liability in pharmaceutical litigation

On June 8, 2016, the California Supreme Court granted Firm client Novartis’s petition for review of a California Court of Appeal opinion, which had relied upon Conte v. Wyeth (2008) 168 Cal. App. 4th 89 in holding that Novartis could be held liable as a prior manufacturer of a brand drug for injuries allegedly caused years later by a generic version of the drug. The California Supreme Court granted review on the following issue: “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 the drug.”

As Novartis explained in its Petition, the California Supreme Court’s review is necessary to address two fundamental questions in California product liability law: (1) whether a manufacturer of a branded prescription drug can be liable for harm allegedly caused by a generic drug (“innovator liability”) and (2) whether a former prescription drug manufacturer can be held liable for harm allegedly caused by a subsequent prescription drug manufacturer’s identical product (“former manufacturer liability”). In granting the Petition, the California Supreme Court depublished the Court of Appeal opinion that had recognized both of these expansive theories of product liability.