On Wednesday, September 4, the Alabama Supreme Court will hear arguments to determine whether it should reconsider its decision in Wyeth v. Weeks, a decision that sent shock waves through the State’s business community in January. In its initial opinion, issued over Justice Glenn Murdock’s 46-page dissent, the court adopted a radical new tort theory called “innovator liability,” which it used to hold a brand-name pharmaceutical company responsible for injuries caused by the use of its competitor’s generic medicine.
The Alabama Supreme Court’s original opinion stunned court watchers because it ignored a nearly unanimous national trend of more than 80 courts that have flatly rejected the innovator liability theory. In doing so, the court aligned Alabama with lower courts in California and Vermont – hardly cornerstones of conservative jurisprudence.
The court’s decision even raised eyebrows nationally. For instance, The Wall Street Journal panned the decision, noting that “the court’s judgment contradicts decades of Alabama tort and product liability precedent.” Others expressed concern that the decision might set Alabama back on the road to “Tort Hell,” a notorious nickname that the state earned in the 1980s and 1990s for its “novel” tort theories and excessive verdicts.
If left uncorrected, the Weeks decision has the potential to undermine decades of tort-reform progress that has been crucial to the State’s ability to attract job creators like Mercedes-Benz, Hyundai, and Airbus. Notably, courts in every state that borders Alabama – states with which Alabama routinely competes for job-creating business investment – have squarely rejected innovator liability. In March, Mississippi Business Journal suggested that the Weeks decision might give Mississippi an advantage over Alabama in the economic development race.
To be fair, there is a peculiar aspect of the Weeks case that might make the correct result seem somewhat unsettling. The plaintiff contends that as a result of a recent U.S. Supreme Court decision interpreting federal law, he is barred from suing the manufacturer of the generic medicine he ingested. Consequently, he argued (and the Alabama Supreme Court agreed) that he should be able to sue the maker of the brand-name version of the drug even though he never used their product.
While the fact that an injured individual might not be able to sue the responsible party may seem unfair, the court’s decision to shift liability to a party that had no interaction with the plaintiff is even more troubling. Courts should not be in the business of creating new theories of liability solely to find deep pockets for plaintiffs to sue. To the extent that the U.S. Supreme Court’s recent interpretation of federal law creates unfairness, the clear remedy is for Congress or federal regulators to change federal law to allow such suits.
As it turns out, that is exactly what the federal government is in the process of doing. In direct response to the U.S. Supreme Court’s recent decision raised by the Weeks plaintiff, the Food and Drug Administration (FDA) is currently amending its rules to clarify that consumers injured by generic drug products can sue generic manufacturers. The FDA’s rule change should effectively assign liability for an alleged injury to the manufacturer who reaped the profit from the offending product. As it currently stands, the Alabama Supreme Court’s decision unfairly awards generic companies all of the profit from the sale of their products while sticking their brand-name competitors with all of the liability.
Alabamians should applaud the Alabama Supreme Court for being willing to reconsider a decision that could have dire consequences for the manufacturing industries that have been so crucial to the growth of Alabama’s economy.
Pay attention to the oral arguments before the court on September 4. Job creators, both inside and outside Alabama, will be watching as well.
NOTE: On Monday, February 18, 2013, the Alabama Policy Institute filed an amicus curiae brief before the Alabama Supreme Court arguing that the Court should reverse its opinion in the Weeks case.
Cameron Smith is vice president and general counsel for the Alabama Policy Institute an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. He may be reached at firstname.lastname@example.org or on Twitter @DCameronSmith.
Article source: Supreme Court