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The Alabama Supreme Court redecided Weeks v. Wyeth, Inc., No. 1101397, slip op. (Ala. Aug. 15, 2014), today.  It’s not all that much different than the original “Weeks Reasoning” decision that we excoriated here.  In fact, the first 54 pages of Weeks II (out of a “pithy” 145 pages, one observer noted) are almost verbatim identical to Weeks I.  So we simply reiterate here everything we said in our original post about what we’ll now call “Weeks I.”  Weeks II made only the following changes to Weeks I:

  • Changing “Wyeth Defendants” to “Wyeth” (causing a lot of spacing differences).
  • Adding footnote 2, trying to deny the magnitude of what the court has done – claiming not to “plow new ground.”  Positively Freudian, that.  This footnote would sound less defensive if it could cite some prior Alabama case doing even remotely the same thing.  It doesn’t, because no such opinion exists.
  • Spending a couple of pages distinguishing Pfizer, Inc. v. Farsian, 682 So. 2d 405 (Ala. 1996), a case in which it had equated fraud and product liability claims, essentially because, Farsian involved cognizable injury and Weeks involves, not a “defect,” but “what [defendant] said or did not say about [the drug].”  Weeks II, at 12.  Funny, that’s one spot on way of describing what’s otherwise known as a “warning defect.”
  • New footnote 6 admitting – contrary to new footnote 2 – that “this is the first time the highest court of a state has addressed the issue.”  Except they then admit that’s not so either, because of Huck v. Wyeth, Inc., ___ N.W.2d ___, 2014 WL 3377071 (Iowa July 11, 2014).  In an exhibition of sheer profundity, Weeks II distinguishes Huck because “Iowa law differs from Alabama law” in precisely the way they are changing Alabama law to become.
  • A non-substantive new paragraph break (the opinion could use a lot more) on page 46.

Indeed, Weeks II is so much the same as Weeks I that footnote 7 (formerly footnote 5), listing all the other courts reaching opposite results, wasn’t even updated to reflect the 18 months that have passed since Weeks I.  That footnote still cites no decision after 2012.  Thus, while Weeks (I or II) focused most of its fire on Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994), as being decided before generic preemption was recognized, it now ignores multiple post-Mensing Court of Appeals decisions (which we’ve listed/discussed here and here).  It’s one thing to disagree with one court of appeals applying the law of one other state; it’s another thing to disagree with (by our count) 14 court of appeals decisions, from seven circuits interpreting the laws of 24 states – except when you’re the Alabama Supreme Court.

Unable to distinguish over a dozen new appellate precedents, Weeks II, instead takes refuge in silence.  It doesn’t work.  While it may in some situations be best to remain silent, elsewhere, with all that verbiage, the court has spoken, and thus removed all doubt.

New legal “reasoning” in Weeks II begins on page 54.  It is a discussion of why there actually is a “relationship” between an innovator seller and a generic purchaser because – basically that prescription drugs are “different” from “lawnmowers, automobiles, and other products.”  Weeks II, at 61.  None of these other products are subject to the “unprecedented” control of the FDA.  Id.  Thus, the same opinion that starts out (p.18) quoting Wyeth v. Levine, 555 U.S. 555, 570-71 (2009), about innovator manufacturer’s “responsibility” for their labels, ends up stating that “the FDA has the responsibility of weighing (in terms of extremes) the potential benefit of lifesaving medication against potential severe side effects.”  Weeks II, at 61.  The internal inconsistencies in Weeks II, are almost as breathtaking as its denial that it’s changing the law.

So, if prescription drugs are different from other products, to what situations does Weeks II consider them to be more closely analogous?  Judging by the cases the court relies upon, those would be:  conversion of an insurance claim, medical insurance claims, and selling bonds.  Id. at 46-49.  Definitely more analogous than the dozen other appellate Reglan decisions the court doesn’t mention.  Essentially, because the federal government requires generic manufacturers to use the same labeling language as innovators, Weeks II declares that this federal fiat will create a new “relationship” under state law despite that the two entities are direct competitors in the marketplace.  There’s really nothing else.  It’s market share liability by virtue of federally-mandated use of the same labeling – look out anybody else subject to similar labeling restrictions (cars, cigarettes, food, chemicals, pesticides?).

Bottom line.  Alabama has more home-grown plaintiff lawyers than pharmaceutical companies – and after Weeks II, it most assuredly always will.  This is the kind of extreme liability might even be something that other states might find “contrary to public” policy and thus refuse to apply Alabama law.

There are also a concurrence and a dissent.  We recommend the dissent.  At least it actually discuses the policy reasons why innovator liability is a very bad thing.  About the only good thing we can say about Weeks II is that instead of a lone dissent, there were three dissenters this time around.