THE TRUTH ABOUT WEEKS v. WYETH: It’s not “Innovator Liability”

By: Chris Hood

The Alabama Supreme Court, in a 6‑3 decision on August 15, 2014, reaffirmed that patients can sue drugmakers who mislead doctors into believing that prescription medicines the companies market do not cause harmful side‑effects.

The case is Weeks v. Wyeth, and the decision came after the Supreme Court ruled against the drugmakers in the same case last year.  We represent the injured patient who prevailed in both decisions, Danny Weeks.

The ruling of our Supreme Court is good news for patients and doctors.  Telling the truth about prescription drugs enables physicians to make good choices for patients about which medicines to prescribe.  Our case upholds that fact.

Hiding the truth about a drug can hurt patients, which happened to our client.  The drug companies are responsible for that injury.  They don’t want you to know that fact.  They hid the truth about their drug and now try to hide the truth about the decisions in our case.

“Innovator liability” is a label the drug companies have created and applied to the Weeks decisions, but it is not accurate.  It is a fiction.  Those companies, via the media, falsely say our Supreme Court penalized them for innocently innovating the drug at issue.  They want you to believe the issue is about punishing research and invention.

The drugmakers are wrong, flat wrong.  There is no innovator liability in our case.  The companies we sued did not invent the drug at issue, which is called Reglan.  They were not sued for inventing it, and they certainly are not innocent.  We sued them for fraud on the doctor which injured the patient.  We relied on longstanding common law of Alabama, not a newfangled theory (read innovator liability).

Reglan was bought from a French company, specifically to market in the U.S.  The French company invented it, and the defendants who lost in Weeks bought the company which bought the drug from the French.  They then promoted it here as a long‑term drug therapy for reflux, without warning of the side‑effects of long‑term use.  They did so at the time it was prescribed to Danny Weeks, causing his injury.

The Supreme Court’s ruling applies only to the companies which controlled the drug and the information about it at the time of Danny’s injury.  We refer to them as the “brand defendants,” because they made and controlled Reglan at the relevant time.  It is the “brand drug.”  Our Supreme Court understood that and said so.  It said its decisions in the case are not about innovator liability.

The “spin doctors” for the losing side want you to believe differently.  Don’t be fooled.  There is no penalty for inventing a drug, no “perpetual liability” for the inventor.  Those are fictions made up by the losers to hide the truth of the decisions.

The brand drug companies definitely do not want you to know another key part of the decisions.  The decisions allow patients injured by prescription drugs to sue when their physicians are deceived by the companies, including when a pharmacist fills the prescription with a generic replica of the prescribed drug.

Danny received a generic replica of Reglan, as allowed by law.  The makers of the brand drug furnish the information about it and are responsible by law for the information, including updating it to warn of significant risks to patients.

These facts of generic substitutes for brand drugs are well known by everyone who works with prescription medicines — doctors, pharmacists, and the brand defendants in our case.  They do not apply to power tools, furniture, or seat belts, or any other products.  Our Supreme Court said that.  Our opponents said the opposite.  That’s one reason they lost.

The Weeks decisions are not unusual or unprecedented, another important point which contradicts the drug companies.  The decisions rest on settled Alabama law, and other courts have ruled the same way, including the federal court which certified the question for decision by our Supreme Court.

Three other federal courts applying the laws of other states likewise have ruled against brand drug companies in favor of patients hurt by generic substitute drugs. Three state appeals courts have addressed the same question, and two of them ‑‑ in California and now in Alabama ‑‑ sided with the patients against makers of the brand drug. Alabama joins a number of other state and federal courts which permit this type of suit.

The similar federal decisions are recent. They are Colas v. Abbvie, Inc., a ruling under Virginia law, Dolin v. SmithKline Beecham Corp., a ruling under Illinois law, and Kellogg v. Wyeth, decided under Vermont law.  The California decision in favor of patients is Conte v. Wyeth, Inc.

The Colas and Dolin decisions cited above were issued after the Alabama Supreme Court’s first decision in Weeks (in January, 2013), and that fact contradicts the claim that our Supreme Court is the only court to recently rule for injured patients against brand drug companies.

The other state appellate decision on the question is Huck v. Wyeth, Inc., decided in Iowa against the injured patient.

Only three of the seven justices of the Iowa Supreme Court joined in the Huck opinion which freed the brand drug company from liability.  Iowa’s Chief Justice specially concurred “in the result only” and otherwise agreed with “much of the dissent on the claims against the brand defendant.”  There were three dissenters.  They voted for the injured patient.

The Huck opinion, if not the result, is a tie and is not precedent even for Iowa courts.  It does not bar future suits against brand drug companies.

More courts than before are allowing claims of this type to proceed, and they are doing so under the laws of more states.  So far, according to the cases we cite above, the claims can be made under the laws of Virginia, Illinois, Vermont, and California, with our state now added to the list.  It remains to be seen if Iowa joins in the future.

Our Supreme Court stood up for patients and doctors.  It stood up for the truth about prescription drugs.  The drug companies need to heed the message.