Alabama Personal Injury Claimants Could Sue Brand for Generic Product

The Alabama Supreme Court has ruled that a person could sue a brand name firm for failure to warn about a drug’s risk – even when the patient consumed a generic version of the drug not manufactured by the company.Our Montgomery personal injury lawyers understand the 8-1 ruling in this case, Wyeth Inc. v. Weeks, has the effect of expanding the legal concept of foreseeability. That is, a brand name manufacturer could be expected to reasonably foresee that a doctor prescribing either a brand name drug or its generic spin-off would rely on risk warnings drafted by the brand name manufacturer – even if the patient was ultimately given the generic version.

Interestingly, a court in California had rejected this same kind of pure foreseeability doctrine in O’Neil v. Crane Co.

However, the Alabama Supreme Court reached its decision relying on previous U.S. Supreme Court rulings in PLIVA, Inc. v. Mensing and Wyeth v. Levine, rulings reached in 2011 and 2009, respectively. In the PLIVA case, the court had ruled that federal laws barred generic manufacturers from altering warning labels on their products to differ from those on the brand name product.

So it’s not so much a question of a manufacturing defect, but of a failure to warn of a particular risk. In that case, a brand name company could be held liable because the generic manufacturer would have simply repeated the warning label originally drafted by the brand name company.

As of right now, the case applies only to Alabama product liability claimants, it was closely watched by personal injury attorneys around the country, because of the reliance on the recent U.S. Supreme Court rulings. In this way, the ruling has national implications.

The ruling doesn’t necessarily mean that the plaintiff is going to win, but it’s a victory that he is being allowed to move forward with the case.

Accourding to court documents, the plaintiff in this case developed a condition called tardive dykinesia. This is a disorder that results in repetitive, involuntary muscle movements, reportedly caused by the long-term use of a drug called metoclopramide. This is a generic form of Reglan, a heartburn medication manufactured by drug giant Pfizer.

The lawsuit names Pfizer, as well as two different generic drug manufacturers – Actavis Elizabeth and Teva Pharmaceuticals – in the U.S. District Court in the Middle District of Alabama. The suit claims all companies failed to warn users and physicians about the long-term risks associated with metoclopramide.

The plaintiff had never before consumed Reglan and Pfizer never made metoclopramide. Pfizer had originally moved to dismiss on the ground that brand name product makers have no duty to a patient who consume a generic drug not produced by the brand maker.

The U.S. District Court asked for certification from the Alabama Supreme Court on the issue of brand name manufacturer liability for duty to warn.

In its decision, the Alabama Supreme Court noted conflicting rulings from other state courts, as well as the growing number of lawsuits being filed against Pfizer for complications due to consuming Reglan long-term.

Call Allred & Allred P.C. at 334.396.9200 to speak with a personal injury attorney today.

Additional Resources:
Man Taking Generic Drug Can Sue Branded Maker, Jan. 11, 2013, By Katie Thomas, The New York Times
More Blog Entries:
Alabama Product Liability: Linden, Jr. v. CNH America Explains The Sophisticated User Doctrine, March 19, 2012, Montgomery Injury Lawyer Blog

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