As of June 1, 2016, more than 250 Zofran lawsuits have been filed in the US District Court of Massachusetts. Most of the claims, however, didn’t start in the Boston court where they are now consolidated. In fact, 151 of them were originally filed in Alabama, according to a new report from AL.com. That may seem arbitrary, or even strange. But until recently, Alabama was one of the only states that allowed plaintiffs to sue brand name drug companies over injuries caused by generic drugs.
Industry groups have long rankled at the theory of liability which holds that brand name companies can be held accountable for the harm done by copycat drugs. In Alabama, these industry lobbyists won a major victory on April 28, 2015, when a bill eliminating the recognition of “innovator liability” easily passed both houses of the state legislature. The legislation was supported by the US Chamber of Commerce and the Wall Street Journal, among other corporate-friendly publications.
Will Patients Lose Out Without Generic Drug Liability?
Consumers and personal injury lawyers, on the other hand, say that Alabama’s new law has blocked off the only avenue for justice available to patients hurt by generics.
The logic behind this liability isn’t particularly crazy, since generic equivalents are required to be identical to brand name drugs, in both chemistry and labeling. That means the task of warning consumers falls solely on brand name companies. If history is any guide, major corporations often fail to warn patients and the health community of known risks.
Federal regulations prevent generic companies from doing their part to protect public safety. Likewise, the US Supreme Court has held that generic manufacturers can’t be sued over failure to warn allegations, since brand name companies control every word of a warning label. Now, in Alabama as in almost every other state, patients have little recourse through the civil court system, either.
“When You Have Influence, You Get Done What You Want Done”
For Chris Hood, an attorney in Alabama, the elimination of innovator liability is indicative of a fundamental truth: in government, money talks. “The US Chamber of Commerce and some other extremely wealthy individuals and business lobbies came down here and persuaded our Alabama legislature to change the law,” Hood told AL.com. “When you have influence with the legislature, you get done what you want done.”
In 2013, Hood won a big case before Alabama’s Supreme Court, in which the state’s highest legal authority held that brand name liability was “not fundamentally unfair.” For two short years, the theory was recognized by state courts, allowing thousands of plaintiffs to file suit against brand name companies over injuries caused by generic pharmaceuticals. That era is now over in Alabama, and Hood believes big money is what changed the state’s mind.
State Senator Cam Ward, who introduced the bill, received a campaign contribution from Connecticut’s Purdue Pharma “less than a week before he proposed” the legislation, according to state records reviewed by reporters at AL.com. State rep. Jack Williams received a donation from GlaxoSmithKline’s political action committee in 2014. He had introduced a similar bill to the Alabama legislature a year earlier.
Today, only three states recognize innovator liability: Vermont, Illinois and California.
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