With the U.S. Supreme Court holding last year in Pliva, Inc. v. Mensing that the manufacturer of a generic pharmaceutical product cannot be liable under a failure-to-warn theory, pharmaceutical plaintiffs are searching for new theories to hold nonmanufacturers liable for alleged injuries. The 2009 case Conte v. Wyeth Inc., et al. was widely publicized for allowing plaintiffs injured by a generic pharmaceutical to hold the “innovator,” or brand-name manufacturer, liable even though it did not manufacture the product, but Conte has not found favor with other courts. In the wake of Mensing and Conte’s failure to gain traction, one has to wonder which nonmanufacturer is the next target.
Plaintiffs recently scored a victory in the battle to hold trademark and trade name licensors liable in product-liability actions in August when the Connecticut Superior Court in Aquaulo ex. rel. Saldibar, et al. v. A.O. Smith Corp., et al. affirmed a $2.4 million verdict against a trademark licensor that neither sold nor manufactured the asbestos-containing dry-set ceramic tile mortar at issue. Although claims against trademark or trade name licensors have had mixed success, licensors should examine their relationship with the license-holding manufacturers or sellers and determine if the benefits of the license are worth the potential risk of liability.