April 04, 2013 Articles

Reflections on Weeks

By Samuel L. Felker

In early January, the Alabama Supreme Court issued a significant opinion in Wyeth, Inc. v. Weeks, No. 1101397, 2013 Ala. LEXIS 2 (Ala. Jan. 11, 2013), allowing claims brought by a patient allegedly injured by a generic drug to proceed against a brand-name manufacturer, even though the plaintiff never took any of the brand manufacturer's products. Weeks is the latest saga in the ongoing mass tort litigation involving the prescription drug metoclopramide, which is the generic form of the brand-name drug Reglan.

For years plaintiffs have relentlessly pursued both generic and brand-name manufacturers of metoclopramide in state and federal courts across the country. Generic manufacturers achieved a significant victory two years ago when the Supreme Court held in PLIVA, Inc. v. Mensing, 564 U.S. __, 131 S. Ct. 2567 (2011) that state-law failure to warn claims against generic manufacturers were preempted by federal regulations issued by the U.S. Food and Drug Administration. The problem is that Mensing left plaintiffs who took generic drugs without a remedy for their alleged injuries because most courts, relying on traditional products-liability principles, rejected liability against a brand-name manufacturer when the plaintiff took only the generic product.  Plaintiffs' lawyers now hope Weeks will change that. 

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