As born and raised Californians, we know that California has much to offer: 800 miles of pristine coastline, world-class skiing, stellar wine, 17 professional sports teams. We also like the fact that Californians tend to deviate from the mainstream and have a unique way of looking at the world. The Mama’s and the Papas called it “California Dreaming.” We also know all too well that Californians have produced some real head-scratching judicial opinions. The recent California decision T.H. v. Novartis Pharmaceuticals Corporation (Mar. 9, 2016), which the California Supreme Court agreed to review this month, is a real doozy . . . even by California standards.
In T.H., the Court of Appeal considered whether Novartis could be held liable for injuries suffered by twins in utero after their mother took a generic version of an asthma medication (terbutaline), even though Novartis manufactured only the name-brand version of the drug, and had divested itself of even that six years before the woman took the medication. Startlingly, the court concluded that plaintiffs could state failure to warn and misrepresentation claims against Novartis for failing to change the drug’s labeling when it owned the new drug application (NDA), at least at the pleadings stage. It essentially embraced a little-discussed doctrine of “predecessor liability,” whereby the previous manufacturer of a product could be held liable for injuries caused by a product it previously manufactured and sold, but no longer does.
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