Kimmy and Larry McNair v. Johnson & Johnson

Patterson Belknap Successfully Advised Johnson & Johnson on the matter

On May 11, 2018, Patterson Belknap secured an important win in West Virginia’s highest court for a Fortune 50 pharmaceutical company on the subject of “innovator liability.”

The plaintiffs in the case asked the court to find our client, an innovator pharmaceutical company, liable for the injuries allegedly caused by a generic version of one of its medicines. This case is part of a growing trend of the plaintiff’s bar asking the courts to allow consumers of generic drugs to sue the name-brand (i.e., innovator) manufacturer whose medicine the generic manufacturer copied, even though the name-brand manufacturer didn’t make, sell, or profit from the drug the plaintiff took.

The Supreme Court of Appeals of West Virginia held, without qualification, that “[t]here is no cause of action in West Virginia … against a brand-name drug manufacturer when the drug ingested was produced by a generic drug manufacturer.” Quoting the Firm’s brief, the Court explained that “[f]inding the brand manufacturer liable for the ingestion of a generic drug ‘would sever the connection between risk and reward’ … that forms the basis of products liability law.” It also agreed with the Firm’s arguments that the increased costs that name-brand manufacturers would bear as a result of such liability may “[raise] the price of new drugs to the disadvantage of consumers” and “stifle the development of new drugs, which would have negative health consequences for society.”

Patterson Belknap successfully represented J&J with a team including Jonah M. Knobler (Picture) and John Winter.

Involved fees earner: John Winter – Patterson Belknap; Jonah Knobler – Patterson Belknap;

Law Firms: Patterson Belknap;

Clients: Johnson & Johnson;

Author: Ambrogio Visconti