Weeks Defies Years of Jurisprudence, Allowing Innovator Liability for Generic Drugs

Last week the Alabama Supreme Court adopted brand-name manufacturer liability for a generic drug sold by another company, becoming the first state supreme court to do so. Wyeth, Inc. v. Weeks, No. 1101397 (Ala. Jan. 11, 2013). The court held that a generic drug user could foreseeably rely on a brand-name drug warning and maintain a failure to warn claim against the brand-name manufacturer, even when the plaintiff did not ingest that manufacturer’s drug.

CERTIFIED QUESTION FROM DISTRICT COURT -

Danny and Vicki Weeks filed suit against four pharmaceutical companies in federal district court, alleging injury from long-term use of metoclopramide, the generic form of Reglan. They claimed that Mr. Weeks ingested generic metoclopramide manufactured by Teva and Actavis. Plaintiffs also named Wyeth and Schwarz, the manufacturers of brand-name Reglan, even though they never alleged that Mr. Weeks ingested the brand-name drug. Instead, they sued Wyeth and Schwarz on a theory that the brand-name manufacturers had a duty to warn all users of the drug based on federal requirements that all generic labels be identical to the brand-name label. Faced with this question and conflicting precedent, the district court certified the question to the Alabama Supreme Court, specifically...

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