A Bitter Pill for Brand Names?

3 Pages Posted: 21 Feb 2012

See all articles by Allen Rostron

Allen Rostron

University of Missouri at Kansas City - School of Law

Date Written: July 1, 2011


In its 2008 ruling in Conte v. Wyeth Inc., the California Court of Appeal broke new ground by finding that the manufacturer of a brand-name prescription drug could be held liable for negligence that caused harm to people taking other manufacturers’ generic versions of the drug. So far, most other courts have rejected this theory of liability. But the U.S. Supreme Court’s decisions in Wyeth v. Levine and PLIVA Inc. v. Mensing may make it more likely that courts will begin to embrace the Conte theory. The Wyeth and PLIVA decisions mean that federal law preempts claims against generic drug makers for failing to give adequate warnings, but permits such claims to be brought against brand-name drug manufacturers. Courts may turn to the Conte liability theory as a way to permit some recovery for injuries that were caused by the negligence of the brand-name manufacturer as well as the generic producer.

Keywords: prescription drugs, medicine, generic, brand name, products liability, federal preemption, torts, FDA

JEL Classification: K13, L65

Suggested Citation

Rostron, Allen K., A Bitter Pill for Brand Names? (July 1, 2011). Available at SSRN: https://ssrn.com/abstract=2008797 or http://dx.doi.org/10.2139/ssrn.2008797

Allen K. Rostron (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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