On August 15, 2014, the Alabama Supreme Court issued a decision following rehearing in Wyeth, Inc. v. Weeks, 2014 WL 4055813 (Ala. Aug. 15, 2014) (" Weeks II"). The court held that a brand-name drug company  may be liable for fraud or misrepresentation to a plaintiff claiming injury from ingestion of a generic version of  the drug manufactured by a different company. The decision places Alabama in a very small minority of courts  that have embraced the doctrine known as "innovator liability."

In Weeks II, plaintiff alleged he was injured by his use of the generic drug metoclopramide. Despite never  ingesting the branded product, Plaintiff brought fraud and misrepresentation claims against both generic and  brand-name manufacturers. The brand-name manufacturers moved to dismiss. In January 2013, the Alabama  Supreme Court issued an 8-1 decision holding that a brand-name manufacturer may be held liable for injuries  suffered by a plaintiff who only ingested a generic version of the drug. Wyeth, Inc. v. Weeks, 2013 WL 135753  (Ala. Jan. 11, 2013) (" Weeks I "). In Weeks I, the court relied on a foreseeability analysis that had only been  embraced by a few courts: finding that because of the generic labeling regulations on sameness, a defective  warning in the brand-name labeling "would necessarily be repeated in the generic labeling, foreseeably causing harm to a patient who ingested the generic product." 2013 WL 135753, at *15.

In a 6-3 decision, the Alabama Supreme Court confirmed this result in Weeks II. Responding to Wyeth's  argument that it owed no tort "duty" to generic-ingesting plaintiffs because there is no "relationship" between an  innovator seller and a generic purchaser, the court attempted to distinguish prescription drugs from other  consumer products such as "lawnmowers, automobiles, and other products," pointing to their heavy regulation  by FDA. 2014 WL 4055813, at *22. The court stated that under the regulatory scheme, Wyeth "authored the label with its warnings, and the generic manufacturers, as required by FDA regulations, copied that label  verbatim." Id. at *21. Thus, the court found plaintiff's fraud claim was not the same as "a products-liability claim where privity is needed." Id.

The Weeks II decision places Alabama in a very small minority of courts that have adopted "innovator liability."  Most courts have held that holding an innovator company liable for injuries allegedly caused by a product  manufactured by a different company violates the longstanding "product-identification" requirement and  stretches the concept of foreseeability beyond its outer limits