This post is by the Reed Smith part of the blog only. The Decherts are too involved in this litigation to comment publicly.
There aren’t many research-oriented pharmaceutical companies based in Alabama, and after last week’s execrable decision in Wyeth, Inc. v. Weeks, ___ So.3d___, 2013 WL 135753, slip op. (Ala. Jan. 11, 2013), that’s not likely to change any time soon. We don’t know why that started; Huntsville, at least, has a distinguished scientific background (and there's a statue of a Vulcan in Birmingham – wait a minute, the ears don't match Spock's), but it’s certainly true now. Unfortunately it appears that, instead of (or perhaps in addition to, given the recent election results) the Ten Commandments, there’s another commandment that the Alabama Supreme Court is following: Thou Shalt (if you’re an Alabamian) Recover From An Out-Of-State Drug Company.
Nor is it very likely that this novel theory of “fraud/misrepresentation” liability can be limited to prescription drugs, whatever its intended scope. There are lots of situations in which products bear similar warnings. Sometimes, as with prescription drugs, such similarity is mandated by the government (cars, for example, or chemicals); sometimes similarity is simply a function of similar products having similar risks, and thus requiring similar warnings. One such example could be asbestos. There were lots of different asbestos products, and the same kinds of asbestos products do (or, at least, plaintiffs allege they do) have similar risks. We have to think that asbestos plaintiffs are going to have a field day with Weeks – more, perhaps, than even generic plaintiffs, since the learned intermediary rule still applies to prescription drug cases.
- Mosley v. Wyeth, 719 F. Supp.2d 1340 (S.D. Ala. 2010) − “[W]e note that Mosley was issued before the United States Supreme Court in [Mensing], supra . . . Reliance upon the reasoning in Mosley that a generic manufacturer is responsible for its own warning labels and revisions of those labels is unsound”). Weeks, 2013 WL 135753, at *9.
- Overton v. Wyeth, Inc., 2011 WL 1343392 (Mag. S.D. Ala. March 15, 2011), adopted, 2011 WL 1343391 (S.D. Ala. April 7, 2011) – “Overton was issued before the Supreme Court decided [Mensing]. Accordingly, the federal court's conclusion in Overton that a generic manufacturer becomes responsible for its own warning label after the ANDA process is incorrect.” Weeks, 2013 WL 135753, at *10.
- Simpson v. Wyeth, Inc., 2010 WL 5485812 (N.D. Ala. Dec. 9, 2010) − Simpson was issued before [Mensing] was decided, and the federal court's conclusion in Simpson − that generic manufacturers have their own duty to correctly advise a physician of risks associated with the generic drug regardless of the fact that a generic label is required to be the same as the brand-name label − is questionable. Weeks, 2013 WL 135753, at *11.
Or almost half the country − just sayin'.
We're not holding our breath.