We previously reported on an appellate opinion out of the state of California, Conte v. Wyeth, Inc., 168 Cal. App. 4th 89, 85 Cal. Rptr. 3d 299 (2009), which held that a name-brand prescription drug manufacturer's duty to use due care when providing product warnings extends to patients whose prescriptions are filled with the generic version of the drug. Recently, the United States District Court for the Southern District of West Virginia declined to follow Conte and held the opposite in Meade v. Parsley, 2009 WL 3806716 (S.D. W. Va. Nov. 13, 2009).

In Meade, the patient was prescribed Reglan to treat her reflux disease. Wyeth, Inc. manufactured Reglan from approximately 1989 through late December 2001, at which time Schwarz Pharma, Inc. acquired the rights and began to manufacture and distribute Reglan until 2008. Plaintiffs conceded, however, that Ms. Meade never purchased or ingested Reglan and that all of her prescriptions were filled with generic versions of the drug. While taking the drug, Ms. Meade developed the neurological disorders tardive dyskinesia and akathisia.

Her complaint alleged 13 counts under theories of strict product liability, breach of express and implied warranties, negligence, misrepresentation, fraud, the West Virginia Unfair Trade Practices Act and intentional infliction of emotional distress. Wyeth and Schwarz moved for summary judgment, which was granted by the District Court in West Virginia.

The court relied upon the Fourth Circuit opinion in Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994), which held that a brand name manufacturer's representations about its own product cannot serve as a basis for liability for damages caused by a generic product and a brand name manufacturer owes no duty of care where the patient never used the brand name drug. The court noted that Foster had been followed in the Eastern District of North Carolina, the Western District of Arkansas, the Northern District of Georgia, and the Eastern District of Pennsylvania and, although based on Maryland product liability law, would not yield a different result under West Virginia law.

Plaintiffs in Meade unsuccessfully relied on Conte v. Wyeth, but the District Court, although recognizing that the facts of the two cases are identical, declined to follow Conte, noting that it "is the only decision in several like actions that has allowed the plaintiff to proceed against Wyeth when only the generic version of the drug was ingested. "Meade at *3. The import of the court's opinion is that there can be no liability against a brand name manufacturer for the use of a generic product allegedly made and packaged the same as the name brand counterpart predicted on the use of a product neither manufactured nor sold by the defendant brand name manufacturer — vicarious manufacturer liability is not sustainable, at least in the Southern District of West Virginia.