When that which is supposed to heal, does more harm than good

Pharmaceutical-related products-liability claims come in three basic categories, which parallel those of defective-product claims in general: claims based on defectively manufactured pharmaceutical drugs, claims based on defectively designed drugs (even though properly manufactured), and claims based on inadequate warnings or improperly marketed pharmaceutical drugs. The focus of this article is this last category: where the pharmaceutical manufacturer fails to issue proper or adequate warnings regarding the dangers or side effects of a drug it manufactured.

As early as 1980, California courts recognized that that when it comes to choosing whether the cost of an injury involving prescription medication should be borne by an innocent plaintiff or a negligent defendant, the latter should bear the cost. (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 610- 611.) Significant moral blame attaches where a brand-name drug manufacturer fails to warn about the unsafe effects of its drug, when those unsafe effects are known or reasonably should have been known to the manufacturer. (See Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 814.) A brand-name drug manufacturer is in the best position to discover and cure deficiencies in its warning label, to bear the cost of injury resulting from its failure to update and maintain the warning label, to ensure against the risk of liability, and to spread any increased cost widely among the public. After all, the fault (if any) for a deficient label lies with the brand-name manufacturer alone. (Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 449.)

In 2008, in Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, the court recognized warning-label liability in both brand-name and generic drugs. In Conte, the court decided that a brand-name drug manufacturer’s common-law duty of care when warning of the dangers of its drug extended not only to consumers of the brand-name drug, “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.” (Id. at 94.) The court’s holding predated by approximately three years the United States Supreme Court’s ruling requiring generic drug manufacturers to conform their warning label to the brand-name manufacturer’s label. (PLIVA, Inc. v. Mensing (2011) 564 U.S. 604.)

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