Weeks II: Innovator Liability Finds A Sweet Home In Alabama

Last week, the Supreme Court of Alabama confirmed its January 2013 holding that manufacturers of brand drugs can be liable for injuries caused by generic drugs. Weeks v. Wyeth, Inc., No. 1101397, slip op. (Ala. Aug. 15, 2014). Though the recent ruling puts Alabama in a very small minority of jurisdictions recognizing "innovator liability," it still represents a state supreme court holding that exposes brand drug manufacturers to liability they had not previously known. The ruling will likely result in significant new filings by the plaintiffs' bar in Alabama, and renewed arguments by them for other jurisdictions to follow Alabama's reasoning.

REARGUMENT AFTER JANUARY 2013 OPINION

The Weeks case was originally decided in January 2013.1 In that opinion, the Alabama court became the first state supreme court to hold that brand drug manufacturers could be liable for injuries caused by generic drugs because the warnings and labels relied on were those of the brand drug. That ruling was contrary to the overwhelming majority of other courts, both trial courts and appellate courts alike who ruled against liability unless the drug ingested was from the brand drug company. The Supreme Court of Alabama was excoriated by many for deciding such an important question without oral argument. When the court decided to rehear the case, this time with oral argument, many in the pharmaceutical industry viewed this as an omen that reversal was likely. As time passed, it was thought the court might be carefully crafting a new opinion.

That hope was misplaced. The new Weeks opinion is surprising and disappointing to the pharmaceutical industry; it essentially re-states the original opinion despite the fact that it had been nearly one year since oral argument and many courts had weighed in on this issue in the intervening year and a half since the first opinion.

THE HOLDING: FORESEEABILITY DERIVES FROM MENSING PREEMPTION

Our previous client alert examined the rationale behind the original holding. Essentially, the Supreme Court of Alabama held that it was foreseeable that a generic drug user's doctor would rely on representations by a brand drug manufacturer. In reaching this conclusion, the court relied on PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), which interpreted federal statutes and regulations as requiring generic drug manufacturers to copy brand drug manufacturers' labels. Unlike most other courts that have examined this issue, theWeeks court found...