Negligent misrepresentation, misrepresented

A recent Court of Appeal decision in California, Conte v. Wyeth, got a bad rap online and in The Recorder.

In the case, plaintiff Elizabeth Conte took a generic version of Reglan, a Wyeth drug used to treat gastroesophageal reflux disease. Though the drug should not be taken for more than 1 year at a time, Wyeth provided no warning to that effect. While Ms. Conte took a generic version of Reglan, her doctor testified in deposition that he may have relied on Wyeth's description of the drug when he prescribed it. The point: Wyeth warnings may be used when prescribing Wyeth drugs, even when they are filled with a generic.

The Conte Court held that Wyeth could be liable--if a jury finds that Ms. Conte's doctor did in fact rely on the Wyeth warning--for negligent misrepresentation.

Instead of viewing the case in its proper context--negligent misrepresentation--the blog "Drug and Device Law" contorted it into a products liability case. As "Drug and Device Law" put it,

You can only sue the manufacturer of the product that injured you. Only the manufacturer made a profit from selling the product, and only the manufacturer controls the safety of the product it makes, so only the manufacturer can be liable.

Of course this is true; of course it does not apply in a negligent misrepresentation case. The Court itself was at pains to make the same point:

The conclusion would be sound were Conte in fact pursuing a cause of action against Wyeth for strict products liability. But she is not. The complaint alleges that Wyeth made intentional and/or negligent misrepresentations about the safety of metoclopramide, the risks of its long-term use, and the likelihood of its serious side effects. She does not allege that Wyeth is strictly liable because inadequate warnings rendered its product unreasonably dangerous.

In the end, Drug and Device Law discount Judge Siggins well-reasoned opinion, concluding that he must have reached his conclusion on the basis of emotion rather than reason:

Judges, being human beings, don't like putting large numbers of plaintiffs entirely out of court.

I, for one, take a less cynical view: if a drug manufacturer puts out incorrect information about its drugs, knows that doctors read that information, and knows that some prescriptions are filled with generics, it is fair to expect the drug maker to properly label its drugs--especially when a patient's health hangs in the balance.