Following Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, this decision holds that the manufacturer of a brand name drug may be held liable for negligent failure to warn and negligent misrepresentation to plaintiffs injured by taking a generic version of the manufacturer’s brand name drug. Here, plaintiffs alleged that before it sold its rights in terbutaline in 2001, Novartis learned of studies showing that (in this case) off label use of the asthma medication to inhibit pre-term labor could cause birth defects. Plaintiffs could state negligent failure to warn and negligent misrepresentation claims against Novartis based on its failure to change the drug label warnings before selling its rights in the drug, so long as they could allege and prove that the failure to change the warnings was a substantial factor contributing to their injury in 2007 from their mother’s ingesting the generic version of the drug.

California Court of Appeal, Fourth District, Division 1 (McConnell, J.); March 9, 2016; 2016 WL 916387