In a trio of recent decisions arising out of cases alleging that an antipsychotic medication, Risperdal, and its generic, risperidone, had caused gynecomastia (breast tissue growth) in men, the United States District Court for the District of Delaware granted motions for summary judgment for defendant Janssen Pharmaceuticals, Inc. The three opinions clarify that Delaware law would not impose innovator liability on a branded drug manufacturer when the plaintiff had used only a generic drug, and addressed “but-for” warnings causation and proximate cause in prescription drug products liability cases. [Disclosure: Drinker Biddle & Reath. LLP attorneys were co-counsel of record in these cases for Janssen.]
A recent Appellate Court opinion in a premises liability case alleging back pain has the potential to be a pain in the neck for defense lawyers seeking to argue for possible alternative causes of plaintiff’s injuries in a personal injury cases in Illinois. In Campbell v. Autenreib, 109 N.E.3d 332 (2018), the Fifth District held that testimony about the potential alternative causes of plaintiff’s injuries elicited through cross-examination of the plaintiff’s treating physician was too speculative to be admitted in the absence of any defense expert testimony supporting the alternative causes. This opinion expands on the Illinois Supreme Court’s opinion in Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), which held that in most cases defendants must present expert testimony about the relevance of a prior injury or medical condition in a personal injury case.
In a much-anticipated ruling on the appeal of a $3 million verdict against GlaxoSmithKline (GSK) in a wrongful death case involving the Paxil generic, paroxetine, the U.S. Court of Appeals for the Seventh Circuit reversed on Wednesday and held that the plaintiff’s claims were preempted under Wyeth v. Levine, 555 U.S. 555 (2009). Dolin v. GlaxoSmithKline LLC, No. 17-3030, slip op. at 25 (7th Cir. August 22, 2018). The appellate court’s decision was also notable in that the court ruled on the preemption issues without addressing whether Illinois law would permit a claim of “innovator liability” against brand manufacturer GSK when the plaintiff had only taken generic paroxetine manufactured by a different company. Id.