Last summer, after reconsidering a decision it had issued, the Supreme Court of Alabama held fast to its opinion in Wyeth, Inc. v Weeks, 159 So. 3d 649 (Ala. 2014). The Weeks decision had imposed what some call “innovator liability,” holding that a brand-name pharmaceutical manufacturer may be liable for fraud for failing to disclose risks associated with a medicine, even if the plaintiff did not ingest the brand-name medicine but instead took a generic form of the pharmaceutical.
On the heels of that decision, the Alabama Legislature recently took the unusual step of passing a law that effectively abrogated Weeks. Act No. 2015-106, Ala. Acts 2015. The law provides, in part:
“In any civil action for personal injury, death, or property damage caused by a product, regardless of the type of claim alleged or the theory of liability asserted, the plaintiff must prove, among other elements, that the defendant designed, manufactured, sold, or leased the particular product the use of which is alleged to have caused the injury on which the claim is based, and not a similar or equivalent product.”
That is, a pharmaceutical manufacturer cannot be liable to a plaintiff who did not take the manufacturer’s actual medicine. At first blush, Act 106 appears to have comprehensively addressed the problems that could stem from Weeks. While the opinion is lengthy, it is specifically limited to brand-name pharmaceutical manufacturers. Weeks, 159 So. 3d at 655 & 676.
The one quirk to the law is that it is not effective until November 1, 2015. However, since the Legislature abrogated Weeks, our firm has already seen situations where plaintiffs’ attorneys appear to have passed up opportunities to raise possible Weeks-based claims. Thus, for all intents and purposes, it appears that innovator liability is dead in Alabama.