For a few years, it seemed like we were blogging about the Weeks case every few months. Beyond providing an opportunity for temporal quippery, Weeks caught our attention because it was one of the holdout cases against the tide of cases rejecting Conte, the crappy California case that invented innovator liability. After the Alabama Supreme Court recognized that nefarious doctrine (and some federal courts had started to limit its holding), the Alabama legislature stepped in and enacted the following:
In any civil action for personal injury, death, or property damage caused by a product, regardless of the type of claims alleged or the theory of liability asserted, the plaintiff must prove, among other elements, that the defendant designed, manufactured, sold, or leased the particular product the use of which is alleged to have caused the injury on which the claim is based, and not a similar or equivalent product. Designers, manufacturers, sellers, or lessors of products not identified as having been used, ingested, or encountered by an allegedly injured party may not be held liable for any alleged injury. A person, firm, corporation, association, partnership, or other legal or business entity whose design is copied or otherwise used by a manufacturer without the designer’s express authorization is not subject to liability for personal injury, death, or property damage caused by the manufacturer’s product, even if use of the design is foreseeable.
The connection between that act and the Weeks decision was pretty darn clear. Since then, Alabama cases have been pretty quiet when it comes to attempts to impose liability on a drug company that did not make the drug consumed by the plaintiff seeking to recover.
There is always another fact pattern to test what might seem like settled law—even what the settlement comes from a determined legislature—and that brings us to Forrest Labs. v. Feheley, No. 1180387, 2019 WL 5485548, __ So.3d __ (Ala. 2019). The facts of this case are so tragic that they make us think of the aphorism that “bad facts make bad law.” They also make us think that desperate plaintiffs will find someone to sue and something to sue about, which is not quite so pithy. An individual was prescribed an antidepressant by his doctor and filled it the same day with a generic version made by company X. The next day, maybe before he started the drug, he fatally shot his estranged wife and then killed himself. Her estate sued his estate, as well as a drug manufacturer other than company X, along with fictitiously named defendants. As to the drug company whose antidepressant was not taken by the shooter, her estate alleged a wide range of essentially product liability allegations related to the purported ability for the antidepressant, referenced by its branded name, to produce violent behavior. Skipping and summarizing some procedural steps, the defendant manufacturer teed up the application of the Alabama statute based on the stipulation that the shooter had not taken a drug made by the defendant. Summary judgment for the manufacturer was denied, but the trial court certified the following question for permissive appeal:
The controlling question is whether Alabama Code 1975, § 6-5-530, abrogated the Weeks decision and whether under current Alabama law a pharmaceutical manufacturer can have liability for a product it did not manufacture.
Plaintiff also contended that the statute was unconstitutional if it did abrogate the claims she asserted, but that was not presented on appeal.
On the issue presented, the decision was fairly straightforward, pretty much starting and ending with “the plain meaning of the words as written by the legislature.” The only real addition was the clear timing of the legislation. “[T]he enactment of § 6-5-530, coming on the heels of this Court’s decision in Weeks, clearly demonstrates the legislature’s intent in enacting that statute.” Moreover,
[I]t appears that, in enacting § 6-5-530, the legislature also incorporated provisions that rejected some of the reasoning this Court relied upon in reaching its decision in Weeks. Based on the foregoing, it is clear that, in enacting § 6-5-530, the legislature intended to abrogate this Court’s decision in Weeks. Further, under the plain language of § 6-5-530, a pharmaceutical manufacturer cannot be held liable for injury caused by a product it did not manufacture.
So, the very court that decided Weeks accepted that the legislature overruled it on purpose. That is how the rule of law and separation of powers are supposed to work. Those principles will also allow a further challenge that the Alabama statute was unconstitutional, although it is abundantly clear that legislatures can limit or even abolish certain court-made theories of liability.