This post is from the Reed Smith side of the blog only.

The Alabama Supreme Court’s horrendous, but so far outlier, opinion in Weeks v. Wyeth (we discussed it here) will be reconsidered by that court sometime in September, according to a minute order issued on June 13.  Innovator liability is a novel theory that turns the traditional justification for product liability – that a manufacturer should be responsible for injuries caused by defects in its product – on its head.  Instead innovator manufacturers would be liable for their competitors’ generic products.  In the drug context it would also portent making the 30% of the market made up of new, innovative products bear the burden of injuries suffered by the 70% of the market represented by generic products.  For that reason, if widely adopted (which thankfully it is not) it would inevitably make the prices of innovator drugs skyrocket.  This theory hardly existed at all until the Mensing generic preemption decision made recovery against actual manufacturers problematic, so it’s emergence(?) has nothing to do with the proper workings of state law and everything to do with a desperate search for a deep pocket, no matter how bizarre the logic, in generic drug cases.

In Weeks the Alabama Supreme Court had acted precipitously, without oral argument discussing the above policy issues.  Fortunately, it seems to have realized that there is more to this theory than liability uber alles.