Search results for: Statute liability non-manufacturing seller

Today’s guest post is by Kevin Hara, of Reed Smith, who is pinch-hitting for Steve Boranian. His post today discusses the Texas Supreme Court’s procedural reversal of a lower court’s refusal to hear an interlocutory appeal concerning application of a Texas distributor immunity statute arising in the context of an FDA-regulated drug. The…

That didn’t take long.  Yesterday the Alabama House of Representatives passed SB-80, which abolishes the innovator liability theory created in the execrable decision in Wyeth, Inc. v. Weeks, ___ So.3d___, 2014 WL 4055813 (Ala. Aug. 15, 2014 (discussed here and here, and named #1 worst decision of 2014 here).  Here is a copy of the enrolled bill.  The online legislative history indicates that SB-80 passed the Alabama Senate 32-0 and the House 86-14.

The relevant statutory language, imposing a product identification requirement in all cases seeking damages caused by a product, states:

Section 1. 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.Continue Reading Alabama Legislature Abolishes Weeks Innovator Liability Theory

A pharmacy case from Florida caught our eye this week.  We still have fresh in our minds the survey that Bexis posted a few days ago of state laws limiting the liability of non-manufacturing sellers of prescription medical products.  It was an impressive collection, as Bexis-prepared surveys tend to be, and it covered the potential liability (or lack thereof) of distributors, suppliers, pharmacies, etc.  You know, anyone in the chain who did not manufacture the drug or device and who typically would have no role in developing the product or its warnings. It comes up a lot for us in the context of removal jurisdiction, where plaintiffs fraudulently join local or non-diverse defendants in an attempt to prevent removal to federal court.  The plaintiffs never—and we mean never—actually pursue claims against the local defendants, and we routinely resist their motions to remand cases to state court with arguments that there are no viable claims against mere pass-through sellers of pharmaceutical products and medical devices.

In this regard, the result in Oleckna v. Daytona Discount Pharmacy, No. 5D13-3057, 2015 WL 477841 (Fla. Dist. Ct. App. Feb. 6, 2015), is not helpful because it allows negligence claims against a pharmacy that did nothing more than fill prescriptions as they were written.  In Oleckna, the patient was being treated for stress, and his doctor prescribed Xanax and narcotic pain medication over a period of two years.  Id. at *1.  The patient, sadly, died allegedly “due to combined drug intoxication” of the prescribed medications, and his estate sued the physician who wrote the prescriptions and a pharmacy who filled many of them—allegedly more than 30 prescriptions.  Id. Continue Reading Florida Court Races to Questionable Conclusion on Pharmacy Liability

Many states have legislation on the books that insulates non- manufacturing intermediate sellers from strict liability.  Here’s a bunch that we’re aware of.  Ala. Code §§6-5-501, 6-5-521; Colo. Rev. Stat. §13-21-402(2); 18 Del. Code Ann. §7001; Ga. Code Ann. §51-1-11.1(b); Idaho Code §6-1407; Ill. Ann. Stat., Ch. 735 §5/2-621(a)-(c)(ignore the WL red unconstitutionality flag; the prior provision remains); Iowa Code §613.18; Kan. Stat. Ann. §60-3306; Ky. Rev. Stat. Ann. §411.340; La. Rev. Stat. Ann. §9:2800.52(5); Md. Code Ann. § 5-311; Minn. Stat. Ann. §544.41; Mo. Rev. Stat. §537.762; Miss. Code. Ann. § 11-1-63(h); Neb. Rev. Stat. §25-21, 181; N.C. Gen. Stat. §99B-2; N.D. Cent. Code §28-01.1-06.1; Ohio Rev. Code Ann. §2307.78; S.D. Comp. L. §20-9-9; Tenn. Code Ann. §29-28-106; Tex. Civ. Prac. & Rem. Code Ann. § 82.003; Wash. Rev. Code Ann. §7.72.040; Wis. Stat. Ann. §895.047(2).  If we missed any, let us know and we’ll add them.  Some of these are “innocent supplier” statutes, many with caveats about the manufacturer being subject to suit.  Some are “sealed container” statutes.  What they have in common is the imposition of limits on the liability of non-manufacturing distributors of products.

Have these statutes been applied to the distributors of prescription medical products?  Yes, we’re happy to report, and that’s what this post is about.Continue Reading State Statutes Concerning Distributors As Intermediate Sellers

“Co-promotion,” for those not familiar with the term, is a contractual arrangement between two drug companies.  The details will differ, but basically one company has a drug but not enough sales people.  The second company – the co-promoter – has a larger (or in some other way better situated) sales force, and no competing drug.…

We’ve seen Griffith v. Blatt, 51 P.3d 1256 (Or. 2002), cited – and not just by plaintiffs – for broad propositions, like Oregon abolished the learned intermediary rule in strict liability cases, or that strict liability, generally, is strait-jacketed by legislative adoption of Restatement (Second) of Torts §402A (1965) and its comments.

We don’t…

Sure, it was enjoyable to read In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Product Liability Litigation, ___ F.3d ___, 2018 WL 1954759 (5th Cir. April 25, 2018) (“Pinnacle Hip”), to see plaintiffs’ counsel hoisted on their own petard of improper and prejudicial evidence and arguments.  But there’s more to Pinnacle Hip…

This post is by the Reed Smith part of the blog only.  The Decherts are too involved in this litigation to comment publicly.

There aren’t many research-oriented pharmaceutical companies based in Alabama, and after last week’s execrable decision in Wyeth, Inc. v. Weeks, ___ So.3d___, 2013 WL 135753, slip op. (Ala. Jan. 11, 2013), that’s not likely to change any time soon.  We don’t know why that started; Huntsville, at least, has a distinguished scientific background (and there’s a statue of a Vulcan in Birmingham – wait a minute, the ears don’t match Spock’s), but it’s certainly true now.  Unfortunately it appears that, instead of (or perhaps in addition to, given the recent election results) the Ten Commandments, there’s another commandment that the Alabama Supreme Court is following:  Thou Shalt (if you’re an Alabamian) Recover From An Out-Of-State Drug Company.

While the Alabama Supreme Court certainly has the power to abandon the notion of manufacturer liability for defects in its products (unlike a federal court sitting in diversity), having the power to do something doesn’t make it right.  And if there’s one thing that’s not right, it’s having the liability of a defendant non-manufacturer turn on what its competitors did (or didn’t do).  And if there’s another thing that’s not right, it’s imposing liability on a product manufacturer that didn’t make a cent (and probably was driven out of the market by) from the product that actually caused the injury in question.

Nor is it very likely that this novel theory of “fraud/misrepresentation” liability can be limited to prescription drugs, whatever its intended scope.  There are lots of situations in which products bear similar warnings.

Sometimes, as with prescription drugs, such similarity is mandated by the government (cars, for example, or chemicals); sometimes similarity is simply a function of similar products having similar risks, and thus requiring similar warnings.  One such example could be asbestos.  There were lots of different asbestos products, and the same kinds of asbestos products do (or, at least, plaintiffs allege they do) have similar risks.  We have to think that asbestos plaintiffs are going to have a field day with Weeks – more, perhaps, than even generic plaintiffs, since the learned intermediary rule still applies to prescription drug cases.

Anyway, we could go through each of these policy considerations at length, but we’re not going to.  We already did that in connection with the original decision in Conte v. Wyeth, 168 Cal. App. 4th 89 (Cal. Ct. App. 2008).  So we’ll rely on our discussions there:

First, this kind of liability is contrary to the fundamental legal tenet that manufacturers’ are supposed to be liable because they made money putting the injurious product on the market:

Well, [branded liability] is an end run around the heart of modern product liability, which was created . . . some fifty years ago.  [Courts] recognized a core principle of social responsibility that justified what was then a new form of liability:  The purpose of this [product] liability is to ensure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market.  In other words, because manufacturers profit from the sale of their products, it is appropriate for them to answer for injuries caused by defects in those products.  Time after time, . . . liability for injuries caused by allegedly defective products has been justified by reference to this paramount policy.

DDLaw, Closing The Arguments On Conte (1/22/2009) (citations and quotation marks omitted).Continue Reading Weeks Reasoning – No Sweet Home In Alabama For Research Pharma

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn more about this book