Fortunately, the courts haven't been buying that twisted logic, as our Conte scorecard demonstrates. The other day Conte failed to impress the judge presiding over Reglan/metoclopramide litigation in Tennessee (or at least the Western District). See Strayhorn v. Wyeth Pharmaceuticals, Inc., No. 11-2058-STA-cgc, slip op. (W.D. Tenn. Aug. 8, 2012). In the first place, the Tennessee Product Liability Act subsumed all former common-law claims and required use of the defendant's products. Slip op. at 15-16. Even aside from the TPLA, however, Conte was expressly rejected as “an extreme outlier” and a "minority" position. Id. at 12, 17-18.
Plaintiffs' (there were seven cases) secondary theories also failed. Restatement (Second) of Torts §552 does not apply to product liability and is not a fraud claim. Slip op. at 18-19. Warranty claim require a sale of a product. Id. at 19-20.
Finally, the court invoked our favorite federalism principle:
[W]ithout guidance from a state’s highest court, a federal court sitting in diversity should be reluctant to expand the substantive law of that state . . . because federal courts sitting in a diversity case are in a particularly poor position to endorse a fundamental policy innovation.Slip op. at 20 (citations and quotation marks omitted).
Thanks to Kurt Karst at Hyman Phelps for passing along Strayhorn.