Bench Memos

More on Wyeth Inc. v. Weeks

I’ve previously reported on Wyeth, Inc. v. Weeks, the Alabama Supreme Court decision that put Alabama back on the road to tort hell. Shortly after that post the Alabama Supreme Court agreed to rehear the case, which they did yesterday. Let’s hope they see the wisdom in reversing themselves. As the Wall Street Journal editorial board succinctly explained in today’s paper:

The Alabama Supreme Court put businesses on edge in January when it endorsed a theory of innovator liability that would allow plaintiffs lawyers to sue manufacturers over products they didn’t make. The court revisited that ruling in oral argument on Wednesday, and a better decision would reduce the threat of similar nitwit lawsuits across the economy.

The case began when Alabama resident Danny Weeks sued pharmaceutical company Wyeth for fraud over side effects he said he suffered from taking the generic version of the acid reflux drug Reglan. Wyeth didn’t produce the drug that he took and hadn’t made Reglan for years before he took it. But because federal law requires generic manufacturers to use the same warning labels as brand-name drugs, the court ruled 8-1 that Wyeth was on the hook for Mr. Weeks’s complaints.

Plaintiffs lawyers need no invitation to launch creative lawsuits, but to the extent that liability is genuine it belongs to the maker of the product. In Alabama’s bizarre regime, brand-name manufacturers would make all the investment in a drug. Then when it goes generic they’d lose the profit from the reduced sales and be open to liability suits for products they no longer control.

The effect would be to make brand-name companies the de facto insurers of the entire industry, depleting their profitability and reducing the incentive to invest in new products. The FDA should write a new rule, and we’re glad the Alabama justices are giving the case a second look.

Read the whole piece.

 

Most Popular

Education

Is Journalism School Worth It?

Clarence Darrow dropped out of law school after just a year, figuring that he would learn what he needed to know about legal practice faster if he were actually doing it than sitting in classrooms. (Today, that wouldn't be possible, thanks to licensing requirements.) The same thing is true in other fields -- ... Read More
Culture

Wednesday Links

Today is ANZAC Day, the anniversary of the Battle of Gallipoli: Here's some history, a documentary, and a Lego re-enactment. How DNA Can Lead to Wrongful Convictions: Labs today can identify people with DNA from just a handful of cells, but a handful of cells can easily migrate. The 19th-century art of ... Read More
World

Microscopic Dots. Let’s Look at Them.

Stuart E. Eizenstat has written a big book on the Carter presidency. (Eizenstat was Carter’s chief domestic-policy adviser. He also had a substantial hand in foreign affairs.) I have reviewed the book for the forthcoming NR. Eizenstat tells the story of a meeting between President Carter and Andrei Gromyko, the ... Read More
World

Why North Korea Isn’t Going to Give Up Its Nukes

Responding to reports that North Korea said it “no longer needs” nuclear tests, Jim Hanson, president of the generally pro-Trump Security Studies Group, credited President Trump. “No one was expecting anything to come of Trump’s fiery rhetoric, except people who understand that diplomacy works better ... Read More