Alabama No Longer An Outlier State: Legislature Says “No” To Innovator Liability

I. Introduction -

Since the United States Supreme Court’s decision in Pliva, Inc. v. Mensing, the plaintiffs’ bar has been feverishly searching for an alternate theory of recovery when the claimant took a generic prescription drug. One of those alternate theories is “innovator liability,” which posits that the brand manufacturer should be liable for injuries caused by the generic equivalent even if the claimant did not ingest the brand manufacturer’s product. Plaintiffs rationalize that because the FDA requires the generic manufacturer to copy the brand’s label and warnings, the brand manufacturer should be liable.