Wall Street Journal Adds to Criticism of Alabama High Court’s ‘Innovator Liability’ Decision

Urging justices of Alabama’s Supreme Court to reconsider their January decision that absurdly held a brand-name drug maker liable for the allegedly negative side effects of a generic drug made by a competitor, the Wall Street Journal today adds to the criticism of Wyeth v. Weeks.

In an editorial headlined “The Threat of ‘Innovator Liability,’” the Journal writes: “The court’s judgment contradicts decades of Alabama tort and product liability precedent.”

But because federal regulations and U.S. Supreme Court precedent have effectively removed generic drug makers from “the pool of potential deep pockets,” the Journal observes, “trial lawyers went prospecting for new targets with suits against brand-name drug makers that had lost their patents to the generics. This is the theory of innovator liability, and most of those suits were laughed out of court. Since June 2011, 15 courts, including the federal courts of appeals for the Fifth, Sixth and Eighth Circuits have rejected the . . . targeting innovators. Going back to 1994, 78 decisions applying the law of 25 states have rejected the theory of innovator liability.”

Judicial Hellholes readers will recall similar analysis offered here back in January, and a February link to an even more thorough legal analysis by ATRA general coulsel Victor Schwartz and his colleagues at Shook Hardy & Bacon, LLP.