Anyone who watches ESPN or virtually any other cable show has likely seen advertisements from law firms recruiting clients who believe they suffer from tardive dyskinesia. Lawsuits against the makers of Reglan and its generic equivalent, the long-term use of which is alleged to cause this condition, have been a growth area for Litigation Inc. In fact, if one types “tardive dyskinesia” into a search engine, the first result is http://www.tardivedyskinesia.com/, a site which according to the small print at the bottom of the home page is sponsored by The Peterson Firm.
Lawyers representing alleged dyskinesia patients have argued for years that even if their clients were prescribed the generic version of Reglan, the brand name producer of the drug should be liable under either a product liability or misrepresentation theory for failing to warn of the drug’s long-term effects. Although a few federal and state courts have accepted the theory, they have heretofore been considered outliers.
On Friday in Wyeth v. Weeks, the Alabama Supreme Court, answering a question certified to it by the U.S. District Court for the Middle District of Alabama, ruled that under Alabama law, plaintiffs can sue a brand drug maker for its alleged failure to warn patients’ physicians of harmful side effects of the drug’s generic equivalent.
Six justices concurred with Justice Bolin’s opinion, with Justice Murdock’s dissent, according to the published majority opinion “to follow.”
While you await the dissent, we encourage you to read the “majority opinion” from Washington Legal Foundation’s court opinion-style On the Merits paper from last January, where Ropes & Gray partner Douglas Hallwell-Driemeier explained why the brand drug company’s arguments should prevail.