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
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
We just did. Not only did we suffer through Stengel yesterday, but today we received Weeks – that is Wyeth, Inc. v. Weeks, No. 1101397, slip op. (Ala. Jan. 11, 2013). Alabama just recognized branded liability in a generic case – for fraud not AMELD, and assuming detrimental reliance by the physician. The key
It has been almost three years since we reported that the Alabama Supreme Court overturned jury verdicts against three pharmaceutical companies in cases brought by the Alabama Attorney General alleging the defendants fraudulently manipulated the prices the state paid for drugs under Medicaid. See AstraZeneca LP v. State of Alabama, 41 So.3d 15 (Ala.
Because of Dechert’s involvement in Reglan litigation, we can’t say as much as we’d like to (or used to) about so-called “Conte” liability – that is theories by which plaintiffs who only took generic drugs attempt to impose liability on the manufacturer of a branded bioequivalent that they neither bought nor consumed. As
Back in April, we put up a post complaining about Weeks v. Wyeth, 2011 WL 1216501 (M.D. Ala. March 31, 2011), one of the few courts anywhere not to dismiss a Conte-type non-manufacturer liability claim for failure to state a claim. Instead, contrary to five prior Alabama decisions (and literally scores of cases
Last week we settled a case. It was a good settlement. But we groused about it a bit, because we thought the judge should have granted us summary judgment on preemption grounds. The denial of summary judgment was truly “summary.” There was no written opinion at all, and the judge’s few statements at the hearing
We have to admit that we’re scratching out heads about a recent decision out of Alabama that – contrary to everything else we’ve seen – concluded that the manufacturer of a branded drug could be liable in a case where it never sold the generic product that was all the plaintiff every took and thereby
Faithful readers of this blog may avert their eyes when they see a new post about removal, one of our favorite topics (36 posts and counting). Not another post about fraudulent joinder of in-state defendants or, worse yet, pre-service removal! We can understand that some of you may want to say to us about removal
The Alabama Attorney General has aggressively pursued drug companies for allegedly fraudulently manipulating the prices the state paid for drugs under Medicaid. Sixteen companies agreed to settle those claims; three companies took cases to trial — and lost a total of nearly $300 million.
We’ve just received a copy of the opinion, courtesy of one