20 Feb Brand-name manufacturer to be held liable for generic version of company’s drug?
Sometimes it’s just amazing to see the decision a court will make. I had to share this one…
By Kent Faulk | firstname.lastname@example.org The Birmingham News
BIRMINGHAM, Alabama — Brand name makers of a drug used to treat acid reflux and other digestive problems today asked the Alabama Supreme Court to reconsider its January opinion that people who take generic equivalents of a drug can sue the brand name manufacturers.
The U.S. Chamber of Commerce, the Business Council of Alabama, and four other groups also filed court briefs today supporting that request, saying the court’s earlier ruling could have far-sweeping consequences on healthcare, as well as other industries, in Alabama.
“The only thing predictable about this court’s opinion is that it will lead to more lawsuits, and this necessarily leads to less investment, less innovation, and fewer new jobs in Alabama,” the U.S. Chamber of Commerce states in its brief.
The Business Council of Alabama warned there could be consequences of the Alabama Supreme Court’s ruling to the car manufacturing industry in the state as well.
“For example, will Alabama’s ‘brand-name’ car manufacturers face similar liability to consumers who will foreseeably use generic aftermarket parts to repair their cars?,” the Business Council of Alabama argues in its brief. “If so, how will that impact’brand-name’ manufacturers’ decision whether to expand manufacturing facilities in Alabama or even whether to relocate to a state more respectful of traditional tort limitations? These are significant questions.”
Other groups filing briefs in support of the brand-name manufacturers request are the Alabama Policy Institute, the Pharmaceutical Research and Manufacturers of America, the Product Liability Advisory Council, and the Alabama Defense Lawyers Association. A few of the groups had also filed briefs in the case before the Alabama Supreme Court had made its first ruling.
Wyeth LLC, Pfizer Inc., and Schwarz Pharma, Inc., the brand name manufacturers of the drug Reglan, this morning filed the application for re-hearing to the Alabama Supreme Court to convince the high court to change its opinion. The three manufacturers say the court’s ruling is inconsistent with rulings in the overwhelming majority of state and federal courts around the nation.
“The court should grant rehearing and hold, consistent with the national consensus and existing Alabama tort law, that a brand-name drug manufacturer cannot be held liable for injuries caused by its competitors’ generic drug products,” according to the Wyeth, Pfizer and Scwarz petition. “At the very least, before undertaking such a radical expansion of Alabama tort law – and once again making this state a magnet for novel personal-injury lawsuits – the court should hold oral argument.”
A federal court in the state had asked the Alabama Supreme Court for its opinion on whether Alabama law allows a brand name manufacturer to be held liable for fraud or misrepresentation even though the plaintiff only took the generic equivalent of the drug made by different company. A majority of justices on the Alabama Supreme Court ruled that the brand name manufacturer could be sued.
“In the context of inadequate warnings by the brand-name manufacturer placed on a prescription drug manufactured by a generic-drug manufacturer, it is not fundamentally unfair to hold the brand-name manufacturer liable for warnings on a product it did not produce because the manufacturing process is irrelevant to misrepresentation theories based, not on manufacturing defects in the product itself, but on information and warning deficiencies, when those alleged misrepresentations were drafted by the brand-name manufacturer and merely repeated by the generic manufacturer,” the Alabama Supreme Court ruled.
The question by the federal court was part of legal action in a lawsuit filed by an Alabama couple, Danny and Vicki Weeks. The Weeks sued in U.S. District Court in Montgomery after Danny Weeks developed tardive dyskinesia, a movement disorder, from a generic version of Reglan.
After the Alabama Supreme Court’s opinion in January, Lawyers representing the Weeks hailed it as a landmark decision. “Alabamians injured by generic prescriptions now can hold the brand-maker accountable for understating the risks of the drug,” said Chris Hood, an attorney with the law firm Heninger, Garrison & Davis in Birmingham that represents the Weeks.
“The Alabama Supreme Court, in the Weeks decision, applied and upheld a wise and conservative principle which has been a settled part of Alabama law for more than three-quarters of a century. It is the same conservative principal powerfully expressed by our 26th President, Theodore Roosevelt, when he counseled that our laws should protect the Nation against “wrongdoing wherever it is found,” Hood said today.
An official with Pfizer said in a prepared statement today that the Alabama Supreme Court had gone against long-held principles.
“It is a well-established legal principle that a company should not be held liable for a product it did not manufacture or market,” said Michael J. Parini, senior vice president and associate general counsel, and chief litigation counsel for Pfizer. “The Alabama Supreme Court ruling directly conflicts with this long held principle.”