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Newton’s Third Law: The Alabama Legislature Supersedes Weeks v. Wyeth and Disallows Innovator Liability in Product Liability Cases

Newton’s Third Law: The Alabama Legislature Supersedes Weeks v. Wyeth and Disallows Innovator Liability in Product Liability Cases

Sir Isaac Newton’s Third Law of Motion states, loosely, that for every action there is an equal and opposite reaction. A force exerted by one body upon another causes an equal reaction by the second body. Want an illustration? Well, get your nose out of the physics books and look no further than the Yellowhammer State, the Heart of Dixie, yes, Sweet Home Alabama.

In August 2014, the Alabama Supreme Court joined a sliver of a minority of jurisdictions to allow failure to warn claims to proceed against brand-name drug makers in cases where the plaintiff only took the generic drug. The overwhelming majority of jurisdictions follow the Foster v. American Home Products theory which requires that a plaintiff make a direct connection between the product he or she used and the defendant against whom liability is alleged. Foster translates that a plaintiff who used a generic equivalent drug cannot state a claim against the brand-name manufacturer because the plaintiff could not have been harmed by the brand manufacturer’s product. No connection; no liability.

A few courts, including the Weeks court, allow such claims to proceed on a so-called “innovator liability” theory. The gist of innovator liability is that the brand manufacturer should be liable for injuries caused by the generic equivalent because the generic manufacturer was required under FDA law to have an identical label and warnings, and so, as the argument goes, the brand should be liable even though the plaintiff only took the generic (which, in a suit between the plaintiff and the brand company, is a third party).

The action. When the Alabama Supreme Court allowed this theory of liability in Weeks, it was deemed by Reed Smith’s Drug and Device Law blog as the #1 Worst Prescription Drug/Medical Device Decision of 2014.

The reaction. In order to avoid plunging Alabama back into “tort hell,” as described in a 1993 Forbes magazine by David Frum, and to avoid a looming disaster, the Alabama Legislature passed Senate Bill 80 on April 28, 2015. That law states, in relevant part, that in any product liability civil case, “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.”

The amended statute is set to become law in six months and only applies proactively to new cases.

John H. Dollarhide

high-dollar commercial litigation