Bench Memos

NRO’s home for judicial news and analysis.

Re: Wyeth Inc. v. Weeks, ‘Innovator Liability,’ and Alabama’s Road to Tort Hell


The Wall Street Journal yesterday had an excellent editorial about a recent Alabama supreme court opinion, Wyeth, Inc. v. Weeks, which could once again make the state a “tort hell” for businesses:

Can a drug company be held liable for damages caused by generic drugs it didn’t produce? That’s the expansive new theory of “innovator liability” on parade in Alabama, where a recent ruling by the state Supreme Court could do damage throughout the U.S. economy.

In Wyeth Inc. et al., v. Danny Weeks et al., Mr. Weeks says he suffered from side effects from taking the generic version of an acid-reflux drug called Reglan. He sued Wyeth for fraud and misrepresentation, though the company didn’t make the drug he took and had exited the Reglan market in 2002, five years before he took it. The court ruled 8-1 that Wyeth could be held liable for injuries because the generic manufacturer couldn’t change the warnings on the product it copied. The court’s judgment contradicts decades of Alabama tort and product liability precedent. In his dissent, Justice Glenn Mourdock wrote that the “bedrock principles” of tort law require that the law must create a climate that encourages innovation within a system of risk and reward. He added that the notion that “parties are responsible for their own products, not those of others, are so organic to western economic and legal thought that they rarely find need of expression.”

Jack Park, an Atlanta attorney, had similarly harsh words about the decision in Bench Memos last week:

In struggling to create a remedy to fill the hole it thought that Mensing created [a U.S. Supreme Court decision that barred lawsuits against generic drug makers for failure to warn about their product’s risks], the Alabama supreme court mangled state tort law. In particular, by basing its decision entirely on the assertion that Wyeth could have foreseen the possibility that injury might result from the use of the generic drug, the court overlooked the fundamental rule that a defendant must have some sort of a relationship with the plaintiff before a duty can arise. Here, Wyeth owed no duty to Weeks, who used only Wyeth’s competitors’ products. . . .

At the very least, Weeks opens the door to lawsuits against other name-brand drug makers by the users of generic medicines. It may also open the door to similar claims by non-buyers and non-users in other industries. Worst of all, Weeks threatens to undo some of the hard-won gains of the past 15 years or more by turning Alabama back into a magnet for more “novel” tort lawsuits. 

A re-hearing application is currently pending on this case. I hope that the Alabama Supreme Court will have second thoughts about their decision, and reverse Alabama’s movement toward once again becoming a “tort hell.”


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