Back in January 2013, we told you about the ruling of the Alabama Supreme Court in Wyeth v. Weeks. Weeks held that, under Alabama state law, a patient harmed by a generic drug may recover from the brand-name drug manufacturer (on whose branded drug the generic drug is based) for failing to warn about the drug’s risks. Shortly after Weeks was issued, the Alabama Supreme Court decided to rehear the case. This past August, that court reaffimed its orginal decision.
In June 2011, the U.S. Supreme Court held in Pliva v. Mensing that injured patients' state-law failure-to-warn claims against generic-drug manufacturers are preempted by federal law because the federal Food and Drug Administration requires those manufacturers to use labeling that is the same as the brand-name labeling. Therefore, a suit against the brand-name company may be the only way a patient can obtain compensation for injuries from a mislabeled generic drug.
Contrary to Weeks, most courts to have addressed the issue have held that a patient harmed by a generic drug may not recover from the brand-name company because that company owes no duty to an individual who was not its customer. Recently, in In re Darvocet, Darvon, and Propoxyphene Products Liability Litigation, 756 F.3d 917 (2014), the Sixth Circuit, interpreting the law of twenty-two states, joined the majority view. (The highest courts of those states are of course free to reject that holding down the road.)
