ATRA Critical of California High Court’s ‘Latest Gift to Plaintiffs’ Bar’

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WASHINGTON, D.C., December 22, 2017 – The American Tort Reform Association is criticizing yesterday’s California Supreme Court decision to allow an “innovator liability” claim to proceed to trial as “both […]

WASHINGTON, D.C., December 22, 2017 – The American Tort Reform Association is criticizing yesterday’s California Supreme Court decision to allow an “innovator liability” claim to proceed to trial as “both an outlier and the court’s latest gift to the personal injury bar” just before Christmas.

“Crafted primarily by personal injury lawyers desperate to get around longstanding federal law that shields generic drugmakers from lawsuits over the substance of their medications’ warning labels,” explained ATRA president Tiger Joyce, “the novel theory of innovator liability effectively seeks to turn products liability law on its head.

“Fortunately, the argument that original brand-name drugmakers should be held liable for injuries allegedly arising from generic drugs manufactured, marketed and sold by third-party generic drugmakers has been widely rejected by courts across the country.

“But as the latest edition of ATRA’s annual Judicial Hellholes report makes clear, California’s plaintiff-friendly civil courts rank as the second most unfair in the nation for good reason,” Joyce continued.  “And the state high court’s embrace of innovator liability in T.H. v. Novartis Pharmaceuticals Corporation will only worsen that reputation.”

Joyce noted that, initially, the case had been “reasonably dismissed” by San Diego County Superior Court Judge Joan M. Lewis who concluded that the plaintiffs’ claim, seeking to hold Novartis liable for injuries they suffered in utero after their mother was prescribed a generic asthma medication six years after Novartis had ceased manufacturing its brand-name version and sold its interest in the drug, was precluded by precedent.

But Judge Lewis was unanimously reversed in March 2016 by a three judge appellate panel that remanded the case for trial and invited the plaintiffs to amend their complaint.  That appellate decision was upheld by the high court yesterday, and the case can now proceed to trial.

“At least 35 different courts, including six federal courts and eight different state courts, have rejected innovator liability, recognizing both the inherent injustice of subjecting brand-name manufacturers to unpredictable and potentially immense liability for products they did not make or sell, and the likely negative impact on future investments in innovative, often life-improving and life-saving medicines and devices.

“It’s too soon to know if the defendant will appeal this California Supreme Court decision to the U.S. Supreme Court.  But if it does, ATRA and its members certainly hope the highest court will hear arguments and definitively clarify the law,” Joyce concluded.


The American Tort Reform Association, based in Washington, D.C., is the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation.  Its members include nonprofit organizations and small and large companies, as well as trade, business and professional associations from the state and national level.  The American Tort Reform Foundation is a sister organization dedicated primarily to research and public education.

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