The plaintiff’s attorneys examine the Alabama Supreme Court’s decision on brand-drugmaker liability
BIRMINGHAM, ALA: In a landmark decision, the Alabama Supreme Court ruled on January 11, 2013, that a patient who alleges injury from a generic prescription drug can sue makers of the brandname drug for failing to warn about the product’s risks. The ruling, which issued in favor of Plaintiff Danny Weeks, comes after courts across the country have rejected a similar theory of liability. In his victory, Weeks was represented by attorneys of Heninger Garrison Davis, LLC, who argued the case before the state high court.
“We now have broad daylight for our claims against the brand-makers of Reglan,” commented Lew Garrison, the HGD senior partner in charge of the case. “It is a great win for Danny and vindicates our decision to sue the brand defendants.” The suit is pending in federal court in Montgomery, Alabama, and has been stayed pending the Alabama Supreme Court’s decision on the question whether a plaintiff allegedly harmed by a generic medicine can sue the brandmaker of the drug. The federal court certified the question to the high court.
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Danny Weeks alleges that he developed tardive dyskinesia, a movement disorder, from a generic version of the acid reflux drug Reglan, and that the brand-name manufacturers of the medicine (Wyeth LLC, Pfizer Inc., and Schwarz Pharma, Inc.) failed to adequately warn about its risks. Those brand defendants asked the federal court to certify the question.
In siding with Weeks, the Supreme Court reasoned that “an omission or defect in the labeling for the brand name drug would necessarily be repeated in the generic labeling, foreseeably causing harm to a patient who ingested the generic product.” The court distinguished Weeks’ claims and argument from several prior decisions in favor of brand-makers sued by patients who ingest only the generic versions of a drug. Chris Hood, another of Weeks’ attorneys at HGD, called the decision “compelling and well reasoned.”
“The Alabama Supreme Court is the first and only supreme court of any state to adopt the theory of liability we advocate,” Hood said. “It correctly identified and applied basic tort principles overlooked by numerous lower courts which rejected similar theories,” he added. “The win is tremendously satisfying, particularly because it makes clear that Danny has recourse for his injuries.”
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Prior to the win, over 70 courts across the country had sided with brand‑makers in similar cases. Courts in only two states, California and Vermont, have allowed similar claims to proceed. Furthermore, the U.S. Supreme Court decision PLIVA, Inc. v. Mensing, issued in 2011, rejected a plaintiff’s suit against generic drug makers for failing to warn about their products’ risks. That decision is based on federal preemption of state tort law. Commentators agree that it forecloses claims against generic makers for inadequate warnings on drug labels.
“Alabamians injured by generic prescriptions now can hold the brand-maker accountable for understating the risks of the drug,” Chris Hood explained. “It is the right decision, and it stands on settled law of our state.”
Alabama for decades has recognized that a person harmed by someone else’s misrepresentation can sue that person even if the misrepresentation was made to a third party, not to the person actually harmed by it. Weeks’ claims that the brand-makers of Reglan misinformed his prescribing doctor by understating the risk of contracting tardive dyskinesia from the drug. The doctor is owed a duty of truth on the part of the brand-makers, Weeks’ attorneys argued based on the legal rule known as the learned intermediary doctrine.
Lew Garrison, Weeks’ chief attorney, believes the decision may positively influence courts in other states and thereby provide recourse for patients injured by generic replicas of brand drugs. “States which recognize the learned intermediary doctrine and liability for third‑party fraud may follow suit,” he predicts.