In 1972, Neil Young wrote his great song, “Alabama,” the lyrics of which included the following: “Alabama, you’ve got the rest of the union, to help you along; what’s going wrong?” Those lyrics occurred to us in 2013, when we read the Weeks decision, in which the Alabama Supreme Court endorsed innovator liability. We get how crazy California would embrace such nonsense, but how could Alabama, home of Huntsville rocket scientists and inspiration for To Kill a Mockingbird, arrive at such an error? We called the Weeks decision “execrable” when we wrote about it here. Two years later, we were humming along to a greater song, Lynyrd Skynyrd’s “Sweet Home Alabama,” when the Alabama legislature abolished the innovator liability doctrine in that great state. (We discussed that solonic reversal here.)
Today’s case, Watkins v. Pfizer, Inc., 2023 WL 7308325 (S.D. Alabama Nov. 6, 2023), furnishes fresh proof that the product liability element of product identification is alive and well in Alabama, thanks to the legislature’s restoration of sanity. Watkins involves a very popular over the counter (OTC) medicine. The pro se plaintiff sued a couple of manufacturers, alleging that the OTC pain reliever caused him to suffer from Stevens Johnson Syndrome (SJS). If you’ve read this blog for any length of time, you know that while SJS is a very rare disease, it is not so rare in the area of OTC litigation. SJS can be a terrible disease, and SJS plaintiffs can be terribly sympathetic. Even so, there are legal and medical defenses in SJS cases.
In Watkins, one of the defendants offered up the defense that it was not a manufacturer, designer, or seller of the product. It filed a motion to dismiss the case under Fed. R. Civ. P. 12(b)(6). The injury occurred in Alabama. Therefore, Alabama substantive law governed the case. Quoting the same 2015 statutory amendment that the Blog discussed (Ala. Code section 6-5-530(a) says that “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”), the Watkins decision threw out the complaint because, no matter how liberally the pro se plaintiff’s complaint was construed — which, in the Eleventh Circuit can be quite liberal indeed – it did not include the statutorily mandated element of identifying a product made/sold by the defendant. The court took judicial notice of publicly available materials, including the defendant’s annual report, that demonstrated who makes what. The plaintiff did not challenge the information showing that the movant did not make or sell the medicine. Accordingly, the court dismissed all of the plaintiff’s claims against the moving defendant because the plaintiff “failed to state a plausible claim for relief under Alabama law against” the moving defendant.
As one of our esteemed defense-side colleagues (who played for and won a national championship under Bear Bryant) would say, Roll Tide.