In T. H. v. Novartis Pharmaceuticals Corp., a divided Supreme Court today holds a drug manufacturer might be liable for an inadequate warning label even if the drug that allegedly caused injury was later manufactured as a generic by a different company that had bought the rights to the brand-name drug.  The court’s 4-3 opinion by Justice Mariano-Florentino Cuéllar concludes, “If the person exposed to the generic drug can reasonably allege that the brand-name drug manufacturer’s failure to update its warning label foreseeably and proximately caused physical injury, then the brand-name manufacturer’s liability for its own negligence does not automatically terminate merely because the brand-name manufacturer transferred its rights in the brand-name drug to a successor manufacturer.”

Justices Ming Chin and Goodwin Liu, and pro tem Justice Louis Mauro of the Third District Court of Appeal, join Justice Cuéllar in the majority.  Justice Carol Corrigan writes a concurring and dissenting opinion, which is signed by Chief Justice Tani Cantil-Sakauye and Justice Leondra Kruger.  Justice Corrigan agrees a brand-name drug manufacturer can have warning-label liability even if the plaintiff was prescribed a generic drug produced by another company, but she would cut off that liability once the brand-name manufacturer has sold its product line.  She states, “Plaintiffs’ theory of ‘predecessor liability’ represents a substantial and unprecedented expansion of tort duties.”

The court affirms the Fourth District, Division One, Court of Appeal.

The divided decision with a pro tem justice in the majority raises an institutional issue we’ve discussed before.  (Here, here, and here.)  Because pro tems are chosen on a mostly alphabetical basis, it is fair to speculate that the T. H. result would have been different if by happenstance, instead of Justice Mauro, the pro tem had been, say, Fourth District, Division One, Court of Appeal Presiding Justice Judith McConnell, who sat on the case argued immediately after T. H.

The decision also raises the question how the case got set for oral argument at all.  Both the court’s Operating Practices and Procedures and recent remarks by the Chief Justice suggest that argument in a case with a 3-3 split of the permanent justices would wait until the court was back at full strength.  Perhaps the permanent justices were divided 4-2 when the case was considered for argument and one of the justices later changed sides.  In fact, and this is probably way too much tea-leaves reading, that Justice Corrigan’s opinion attributes the liability theory adopted today to “plaintiffs” instead of to “the majority” could indicate her opinion was originally written as the court’s opinion for four justices and became a dissent only after one of the four defected.

Additionally, the pro tem justice being part of a 4-justice majority marks T. H. as a potential candidate for a rare transition rehearing.  If Governor Jerry Brown appoints and the Commission on Judicial Appointments confirms a new justice within the time for the court to grant rehearing, the new justice — not pro tem Justice Mauro — would rule on any rehearing petition.  Of course, this is Day 288 since former Justice Kathryn Werdegar announced her retirement and it might still be a while before her replacement is named.