On May 1, 2015, Alabama Governor Robert Bentley signed SB80, which expressly bars liability claims against manufacturers that did not design or make the product that a plaintiff actually ingested or used. While at first glance this appears to be nothing more than standard product liability law, the legislation was introduced and passed in reaction to an Alabama Supreme Court opinion, Wyeth Inc. v. Weeks, 2014 Ala. LEXIS 109 (Ala. Aug. 15, 2014).
In Weeks, the Alabama Supreme Court joined a minority of jurisdictions by finding that state law permitted fraud or misrepresentation claims against a brand-name pharmaceutical company stemming from injuries sustained by plaintiff’s use of a generic drug. In responding to a certified question from the United States District Court for the Middle District of Alabama, the Alabama Supreme Court found support for allowing fraud or misrepresentation claims against the brand-name pharmaceutical company because it had written the drug label, which was approved by the FDA, and knew such label would be used by generic drug manufacturers per federal regulations. The court noted early in its decision that it was not creating an innovator liability cause of action. However, in practice, the decision arguably supported imposing liability on a pharmaceutical company solely because it had been involved with the initial FDA approval of the brand-name drug and its label, rather than because it had any involvement with the drug the plaintiff actually ingested.
In reaction to the Weeks decision, the Alabama legislature introduced this legislation to align Alabama law with the majority view as expressed in multiple cases such as Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014); In re Darvocet, Darvon & Propoxyphone Prods. Liab. Litig., 756 F.3d 917 (6th Cir. 2014); Schrock v. Wyeth, Inc., 727 F.3d 1273 (10th Cir. 2014); Guarino v. Wyeth, 719 F.3d 1245 (11th Cir. 2013). This new Alabama law takes effect six months after the signing of the bill and will only apply to suits filed after that date. This means that suits filed in the wake of the Weeks decision will not benefit (directly) from this legislation, but the new statute does provide additional grounds to defend failure-to-warn claims in future suits brought against brand-name pharmaceutical companies in Alabama.
