Earlier this month, the Supreme Court of Alabama confirmed its January 2013 holding in Weeks v. Wyeth Inc. that manufacturers of brand drugs can be liable for injuries caused by generic drugs. Though the recent ruling puts Alabama in a very small minority of jurisdictions recognizing innovator liability, it still represents a state supreme court holding that exposes brand drug manufacturers to liability they had not previously known. The ruling will likely result in significant new filings by the plaintiffs’ bar in Alabama and renewed arguments by them for other jurisdictions to follow Alabama’s reasoning.

Reargument After January 2013 Opinion -

The Weeks case was originally decided in January 2013. In that opinion, the Alabama Supreme Court became the first state supreme court to hold that brand drug manufacturers could be liable for injuries caused by generic drugs because the warnings and labels relied on were those of the brand drug. That ruling was contrary to the overwhelming majority of other courts, both trial courts and appellate courts alike who ruled against liability unless the drug ingested was from the brand drug company. The state high court was excoriated by many for deciding such an important question without oral argument. When the court decided to rehear the case — this time with oral argument — many in the pharmaceutical industry viewed this as an omen that reversal was likely. As time passed, it was thought the court might be carefully crafting a new opinion.

Originally published in Law360 on September 4, 2014.