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Tuesday, March 31, 2020

Ala. lawmakers send bill reversing state SC’s ‘innovator liability’ decision to governor

By Jessica M. Karmasek | Apr 29, 2015

Camward 150x150

MONTGOMERY, Ala. (Legal Newsline) - Alabama lawmakers have passed a bill that would overturn a state Supreme Court ruling that held a brand-name drug manufacturer can be liable for physical injuries caused by a generic drug product that it neither made nor sold.

The measure, Senate Bill 80, garnered bipartisan support in the legislature. The Senate passed the bill 32-9 last month and the House previously voted 88-7 to pass its version, House Bill 110.


The Senate version was sponsored by Sen. Cam Ward, a Republican. The House bill was sponsored by Rep. Jack “J.D.” Williams, also a Republican.

On Tuesday, the House voted 86-14 on final passage of SB 80 and sent it to Gov. Robert Bentley, a Republican, for consideration.


“Thank you to the Alabama House for giving final passage to my tort reform bill on innovative liability,” Ward said in a Facebook post Tuesday evening. “I appreciate the support and look forward to the governor signing this into law.”


Lawmakers crafted the bill after the Alabama Supreme Court issued its ruling in Weeks v. Wyeth in 2013 and then reheard the case and reaffirmed its ruling last year.


“In the context of inadequate warnings by the brand-name manufacturer placed on a prescription drug manufactured by a generic manufacturer, it is not fundamentally unfair to hold the brand-name manufacturer liable for warnings on a product it did not produce because the manufacturing process is irrelevant to misrepresentation theories based, not on manufacturing defects in the product itself, but on information and warning deficiencies, when those alleged misrepresentations were drafted by the brand-name manufacturer and merely repeated, as allowed by the (Food and Drug Administration), by the generic manufacturer,” Justice Michael Bolin wrote in the majority opinion last year.


Plaintiffs Danny and Vicki Weeks sued five current and former drug manufacturers for injuries that Danny Weeks allegedly suffered as a result of his long term use of prescription drug Reglan, which is used to treat gastric esophageal reflux disease, or GERD.


In its initial January 2013 ruling, the high court answered in the affirmative the question of whether a brand-name drug manufacturer, based on statements made in connection with the manufacture or distribution of the brand-name drug, may be liable to a plaintiff who has claimed injury from a generic version of the brand-name drug.


A month later, Pfizer, along with Wyeth LLC and Schwarz Pharma Inc., petitioned for rehearing and asked the court to reject “innovator liability.”


The majority said its decision to reaffirm does not turn products-liability law, or tort law, “on its head.”


“Nor are we creating a new tort of ‘innovator liability,’ as has been suggested,” Bolin wrote of the manufacturers’ arguments.


“Instead, we are answering a question of law involving a product that, unlike any other product on the market, has unprecedented federal regulation.”


Bolin continued, “Nothing in this opinion suggests that a plaintiff can sue Black & Decker for injuries caused by a power tool manufactured by Skil based on labeling or otherwise.”


But business groups feared the ramifications of the court’s decision would be felt in other industries in the state and across the country.


The Business Council of Alabama -- one of the entities that filed an amicus brief in the case -- praised lawmakers for taking action.


“By passing this important legislation, the Alabama Legislature has stood with Alabama’s businesses by reversing the Alabama Supreme Court’s adoption of a novel tort theory, which could have had chilling effects on Alabama’s business climate,” BCA President and CEO William J. Canary said. “On behalf of Alabama’s businesses, the BCA thanks the legislative leadership along with Sen. Cam Ward and Rep. Jack ‘J.D.’ Williams for promptly correcting this wrong.


“Had this not been swiftly corrected by the Legislature, Alabama would have been at a great disadvantage in attracting new business investment, which is key to bringing economic growth and jobs to our state.”


Tommy Lee, BCA first vice chairman and president and CEO of Vulcan Inc., a manufacturer in Foley, Ala., agreed.


“Alabama manufacturers are fortunate that this legislation will now be law,” he said. “To think that a company could be held liable for injuries allegedly caused by a product it neither manufactured nor distributed is alarming, and we thank Speaker (Mike) Hubbard and Pro-Tem (Del) Marsh for making this pro-business bill a priority.”


According to its website, BCA is the state’s exclusive affiliate to the U.S. Chamber of Commerce and the National Association of Manufacturers.


The Chamber’s Institute for Legal Reform owns Legal Newsline.


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Organizations in this Story

National Association of ManufacturersThe Alabama LegislatureAlabama Supreme Court