Behind The Landmark Weeks Case
Prior to the win, over 70 courts across the country had sided with brand‑makers in similar cases. Courts in only two states, California and Vermont, have allowed similar claims to proceed. Furthermore, the U.S. Supreme Court decision PLIVA, Inc. v. Mensing, issued in 2011, rejected a plaintiff's suit against generic drug makers for failing to warn about their products' risks. That decision is based on federal preemption of state tort law. Commentators agree that it forecloses claims against generic makers for inadequate warnings on drug labels.
"Alabamians injured by generic prescriptions now can hold the brand-maker accountable for understating the risks of the drug," Chris Hood explained. "It is the right decision, and it stands on settled law of our state."
Alabama for decades has recognized that a person harmed by someone else's misrepresentation can sue that person even if the misrepresentation was made to a third party, not to the person actually harmed by it. Weeks' claims that the brand-makers of Reglan misinformed his prescribing doctor by understating the risk of contracting tardive dyskinesia from the drug. The doctor is owed a duty of truth on the part of the brand-makers, Weeks' attorneys argued based on the legal rule known as the learned intermediary doctrine.
Lew Garrison, Weeks' chief attorney, believes the decision may positively influence courts in other states and thereby provide recourse for patients injured by generic replicas of brand drugs. "States which recognize the learned intermediary doctrine and liability for third‑party fraud may follow suit," he predicts.The following language is required by Rule 7.2 of the Alabama Rules of Professional Conduct: "No representation is made that the quality of the legal services to be performed is greater than the quality of the legal services performed by other lawyers."
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