Products Liability Law Daily Pharmaceutical company not liable for injuries caused by competitor’s generic product
Monday, October 28, 2019

Pharmaceutical company not liable for injuries caused by competitor’s generic product

By Jessica Y. Washington, J.D.

The Alabama legislature clearly intended to abrogate a prior Alabama Supreme Court decision finding a drug maker liable for injuries sustained from a defective product produced by another manufacturer.

In a permissive appeal filed by a pharmaceutical manufacturer, the Alabama Supreme Court reversed a trial court’s ruling against the company in a matter brought by the estate of a woman who was murdered by her husband after he had taken medication to treat his depression. The suit alleged that the manufacturer was liable pursuant to a narrow exception to the state’s well-established tort law principle that a manufacturer must have produced or sold the product that allegedly caused the consumer harm. Finding that the Alabama legislature clearly intended to abrogate the case that promulgated this exception with the subsequent enactment of a statute which plainly states that a pharmaceutical manufacturer cannot be liable for injury caused by a product it did not produce, the supreme court reversed the lower court’s denial of the manufacturer’s summary judgment motion and remanded the case (Forest Laboratories, LLC v. Feheley , October 25, 2019, Wise, A.).

The lower court matter involved a murder/suicide committed by a man who was prescribed Lexapro (produced by the defendant manufacturer) to treat his depression but who subsequently ingested a generic version of the drug produced by another company, prior to committing the act. His wife’s estate asserted several claims against the Lexapro manufacturer, including product liability, negligence, and breach of implied and express warranty, and sought damages against the defendant based on a narrow exception to Alabama’s well-established principle shielding manufacturers from liability for harm caused by pharmaceuticals they did not produce or sell.

The exception, carved out by the Alabama Supreme Court in a prior case [see Products Liability Law Daily’s August 18, 2014 analysis], states that a brand-name drug company may be held liable for fraud or misrepresentation (by misstatement or omission) based on statements it made regarding the manufacture of a brand-name prescription drug, even if the physical injury sustained by a plaintiff was caused by a generic drug produced by a different company. Although the trial court denied the manufacturer’s motion for summary judgment, it encouraged the appeal of the matter, acknowledging that its interlocutory order involved a controlling question of law for which there was substantial ground for disagreement as to whether Alabama Code 1975, §6-5-530, abrogated the case that promulgated the narrow exception and whether, under current Alabama law, a pharmaceutical company can be liable for a product it did not manufacture.

The state high court found that the enactment of §6-5-530 "on the heels" of its earlier narrow exception decision clearly demonstrated the state legislature’s intent in enacting the statute. The supreme court found that in promulgating §6-5-530, the legislature incorporated provisions that rejected some of the high court’s own reasoning in its earlier decision. Based on these considerations, the Alabama Supreme Court ruled that it was clear that the state legislature’s enactment of §6-5-530 was, indeed, intended to abrogate the supreme court’s prior decision and that pursuant to §6-5-530, a pharmaceutical company cannot be held liable for harm caused by a product it did not manufacture.

The case is No. 1180387.

Attorneys: Megan E. Grossman (Lewis Brisbois Bisgaard & Smith, LLP), John R. Ipsaro (Ulmer & Berne, LLP) and Thomas E. Walker (White Arnold & Dowd P.C.) for Forest Laboratories, LLC. George D. Robinson (Robinson Law Firm, LLC) for Kevin J. Feheley, Sr.

Companies: Forest Laboratories, LLC

MainStory: TopStory WarningsNews DrugsNews DesignManufacturingNews AlabamaNews

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