California Becomes First State to Recognize Innovator Liability

Originally published January 26, 2009

Keywords: California Supreme Court, product liability, duty to warn, generic drugs, brand name drugs, Conte v. Wyeth, negligent misrepresentation

On January 21, 2009, the California Supreme Court declined petitions to review the appellate court decision in Conte v. Wyeth, Inc., et al., 85 Cal. Rptr. 3d 299 (Cal. Ct. App. 2008). In Conte, the appellate court held that Wyeth, a name brand manufacturer of Reglan® (a prescription drug used to treat gastroesophageal reflux disease), has a duty to warn patients whose doctors allegedly rely on Wyeth's labeling information for name brand Reglan® when prescribing the drug, regardless of whether the patient's prescription is filled with the name brand drug or a generic version. In ruling this way, the court of appeals became the first court in the United States to recognize the so-called "innovator liability" theory of recovery.