Brand-name drug companies have launched a last-ditch effort to undo a state court's ruling that they are liable for injuries caused by generic drugs they didn't manufacture.
In a motion for a rehearing filed on Monday, Wyeth LLC and parent company Pfizer Inc. asked the Alabama Supreme Court to reconsider its recent 8-1 decision that Danny Weeks, an Alabama man injured by a generic version of the gastrointestinal drug Reglan, can bring tort claims against the companies. Wyeth argued that as a matter of fairness it shouldn't be liable for Weeks' failure-to-warn claims, since it didn't manufacture the generic Reglan that allegedly caused his injuries.
Co-defendant Pfizer joined in the brief (Pfizer acquired Wyeth in 2009). Six groups, including the U.S. Chamber of Commerce and the Biotechnology Industry Organization, filed amicus briefs supporting the defendants.
Plaintiffs lawyers have long argued, based on theories of tort law, that brand-name drug companies can be held liable for injuries to people who use generic versions of their drugs—so-called "innovator liability." More than 70 U.S. courts have addressed innovator liability, and virtually all have rejected it. Judges have held that it would be unfair to hold companies liable for generic drugs they didn't make, even if those generics are virtually identical to their brand-name counterparts.
Breaking with his colleagues, U.S. District Judge Mark Fuller in Dothan, Ala., allowed Weeks' claims against Wyeth and Pfizer to go forward in April 2011. The Pfizer defense team sought review from the state Supreme Court. Without an oral argument, the high court affirmed in January, writing in a 8-1 opinion that "it is not fundamentally unfair to hold the brand-name manufacturer liable for warnings on a product it did not produce."
Pfizer and Wyeth's lawyers argued the ruling could make Alabama a haven for personal injury lawsuits.
