Wyeth, Inc. v. Danny Weeks and Vicki Weeks

REL:08/15/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________

1101397
____________________

Wyeth, Inc.,1 et al.

v.

Danny Weeks and Vicki Weeks

Certified Question from the United States District Court for
the Middle District of Alabama, Southern Division

(Case No. 1:10-cv-602)

On Application for Rehearing

BOLIN, Justice.

The opinion of January 11, 2013, is withdrawn, and the

1
Although the style of the order certifying the question
shows this entity as "Wyeth, Inc.," it is also referred to in
the order, briefs, and other documents submitted to this Court
as "Wyeth, LLC."
1101397

following is substituted therefor.

The United States District Court for the Middle District

of Alabama, Southern Division ("the district court"), has

certified to this Court the following question pursuant to

Rule 18, Ala. R. App. P.:

"Under Alabama law, may a drug company be held
liable for fraud or misrepresentation (by
misstatement or omission), based on statements it
made in connection with the manufacture or
distribution of a brand-name drug, by a plaintiff
claiming physical injury from a generic drug
manufactured and distributed by a different
company?"

Facts and Procedural History

In its certification to this Court, the district court

provided the following background information:

"Plaintiffs Danny and Vicki Weeks filed this
action against five current and former drug
manufacturers for injuries that Mr. Weeks allegedly
suffered as a result of his long-term use of the
prescription drug product metoclopramide, which is
the generic form of the brand-name drug Reglan.®
The Weekses claim that two companies -- Teva
Pharmaceuticals USA and Actavis Elizabeth, LLC --
manufactured and sold the generic metoclopramide
that Mr. Weeks ingested.

"The Weekses concede that Mr. Weeks did not
ingest any Reglan® manufactured by the three brand-
name defendants, Wyeth LLC, Pfizer Inc., and Schwarz
Pharma, Inc. The Weekses nonetheless assert that the
brand-name defendants are liable for Mr. Weeks's
harm on fraud, misrepresentation, and/or suppression

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theories because they at different times
manufactured or sold brand-name Reglan® and
purportedly either misrepresented or failed
adequately to warn Mr. Weeks or his physician about
the risks of using Reglan® long-term. The brand-
name defendants moved to dismiss the claims against
them, arguing, among other things, (1) that the
Weekses' claims, however pled, are in fact product
liability claims that are barred for failure of
'product identification' and (2) that they had no
duty to warn about the risks associated with
ingestion of their competitors' generic products.
The Weekses responded to the brand-name defendants'
motion, and the defendants replied. On March 31,
2011, this Court granted in part and denied in part
the brand-name defendants' motion, holding that the
Weekses might be able to state a claim for relief
under Alabama law if they could prove that the
brand-name manufacturers had a duty to warn Mr.
Weeks's physician about the risks associated with
long-term use of brand-name Reglan® and, further,
that the Weekses, as third parties, had a right to
enforce an alleged breach of that duty.

"Within the last year alone, federal district
courts in this State have issued four decisions
addressing the question whether brand-name Reglan®
manufacturers can be held liable on fraud,
misrepresentation, and/or suppression theories for
physical injuries allegedly caused by plaintiffs'
ingestion of generic metoclopramide. The first two
courts answered no; however, this Court held
otherwise, thereby creating an intrastate split.
Compare Simpson v. Wyeth, Inc., No. 7:10-CV-01771-
HGD, ... (N.D. Ala. Dec. 9, 2010)[not reported in F.
Supp. 2d], report and recommendation adopted (N.D.
Ala. Jan. 4, 2011)[not reported in F. Supp. 2d]
(holding that a brand-name manufacturer has no duty
under Alabama law to warn of the risks associated
with a competitor's generic product); Mosley v.
Wyeth, Inc., 719 F. Supp. 2d 1340 (S.D. Ala.
2010)(same), with Weeks v. Wyeth, Inc., No. 1:10-cv-

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602 (M.D. Ala. Mar. 31, 2011)[not reported in F.
Supp. 2d](denying brand-name manufacturers' motion
to dismiss on the ground that the plaintiffs there
had pleaded a claim 'that defendants perpetrated a
fraud on the physician'); see also Barnhill v. Teva
Pharm. USA. Inc., No. Civ. 06-0282-CB-M (S.D. Ala.
Apr. 24, 2007)[not reported in F. Supp. 2d](holding
that a brand-name manufacturer of the drug Keflex®
has no duty under Alabama law to warn of the risks
associated with a competitor's generic product).
Since this Court's decision, another district court
in Alabama has followed the earlier decisions. See
Overton v. Wyeth, Inc., No. CA 10-0491-KD-C (S.D.
Ala. Mar. 15, 2011)[not reported in F. Supp. 2d],
report and recommendation adopted (S.D. Ala. Apr. 7,
2011)[not reported in F. Supp. 2d].

"Certification is appropriate here to resolve
the disagreement among the federal district courts
within Alabama and to prevent both federal courts
within the State and state courts around the country
from having to 'mak[e] unnecessary Erie guesses'
about unsettled questions of Alabama law. Tobin v.
Michigan Mut. Ins. Co., 398 F.3d 1267, 1274 (11th
Cir. 2005); see also, e.g., Lehman Bros. v. Schein,
416 U.S. 386, 391 (1974)(noting that certification
often 'save[s] time, energy, and resources and helps
build a cooperative judicial federalism'). 'Because
the only authoritative voice on Alabama law is the
Alabama Supreme Court, it is axiomatic that that
court is the best one to decide issues of Alabama
law.' Blue Cross & Blue Shield of Ala., Inc. v.
Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997).

"The question framed ... satisfies the
requirements of Ala. R. App. P. 18(a): first, it
presents a pure question of Alabama law; second, it
is 'determinative' of this case in the sense that a
negative answer would require dismissal of the
Weekses' claims against the brand-named defendants;
and third, although two Alabama trial courts have
addressed the question whether a brand-name

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manufacturer can ever be held liable for physical
harm caused by a generic product and answered it in
the negative,1 the Alabama Supreme Court has never
considered or resolved either that question or the
subsidiary question whether a plaintiff claiming
physical injury can prevail on fraud,
misrepresentation, and/or suppression theories under
these facts.

"Considerations of judicial efficiency likewise
counsel certification. During the last year, the
number of Reglan®/metoclopramide cases nationwide
ballooned from 250 to approximately 3500. Current
estimates suggest that among the 3500 cases there
are at least 250 Alabama-resident plaintiffs and
that most (if not all) of these plaintiffs assert
the fraud, misrepresentation, and/or suppression
theories asserted here. The Alabama Supreme Court's
definitive resolution of the question presented will
therefore affect not only cases pending (or that
might later arise) in this State, but also the
scores of Alabama-resident cases pending in courts
around the country -- particularly in large
consolidated actions pending in California, New
Jersey, and Pennsylvania. Moreover, the question's
significance extends well beyond the Reglan®
litigation -— and for that matter, even beyond
pharmaceutical litigation. It is likely to recur any
time a brand-name manufacturer (of any product) is
sued on fraud, misrepresentation, and/or suppression
theories by a plaintiff who claims to have been
injured while using a generic-equivalent product.

"....

"1See Buchanan v. Wyeth Pharm., Inc., No. CV-
2007-900065, Order at 1 (Ala. Cir. Ct. Oct. 20,
2008); Green v. Wyeth Pharm., Inc., No. CV-06-3917

5
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ER (Ala. Cir. Ct. May 14, 2007)."

Discussion

At the outset, we limit the question posed to

manufacturers of prescription drugs and not to any

distributors thereof.2 The Weekses' complaint alleges that

three brand-name manufacturers, Wyeth, Pfizer, Inc., and

Schwarz Pharma, Inc. (hereinafter collectively referred to as

"Wyeth"), falsely and deceptively misrepresented or knowingly

suppressed facts about Reglan or metoclopramide such that

Danny Weeks's physician, when he prescribed the drug to Danny,

was materially misinformed and misled about the likelihood

that the drug would cause the movement disorder tardive

dyskinesia and related movement disorders.3 The Weekses

contend that Wyeth had a duty to warn Danny's physician about

2
We have agreed to answer the certified question, which
impacts only the narrow field of prescription drugs, which is
subject to stringent Food and Drug Administration regulations
and oversight. This opinion does not plow new ground, nor
does it create a heretofore unknown field of tort law that has
been referred to as "innovator liability," as discussed infra.
Instead, this opinion answers the question whether the Weekses
may bring a fraudulent-misrepresentation claim under Alabama
law.
3
The Weekses also sued generic manufacturers of
metoclopramide, Teva Pharmaceuticals USA and Actavis
Elizabeth, LLC.
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the risks associated with the long-term use of metoclopramide

and that the Weekses, as third parties, have a right to hold

Wyeth liable for the alleged breach of that duty.

A fraudulent-misrepresentation action is governed by § 6-

5-101, Ala. Code 1975, which provides that

"[m]isrepresentations of a material fact made willfully to

deceive, or recklessly without knowledge, and acted on by the

opposite party, or if made by mistake and innocently and acted

on by the opposite party, constitute legal fraud." A claim of

fraudulent misrepresentation comprises the following elements:

"(1) a false representation (2) concerning a material fact (3)

relied upon by the plaintiff (4) who was damaged as a

proximate result." Fisher v. Comer Plantation, 772 So. 2d 455,

463 (Ala. 2000)(quoting Baker v. Bennett, 603 So. 2d 928, 935

(Ala. 1992)). "An essential element of fraudulent-

misrepresentation and fraudulent-suppression claims is a duty

to disclose." Nesbitt v. Frederick, 941 So. 2d 950, 955 (Ala.

2006).

We recognize that Wyeth argues that the Weekses' claims

are, in essence, "products-liability" claims. In Atkins v.

American Motors Corp., 335 So. 2d 134 (Ala. 1976), in

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conjunction with Casrell v. Altec Industries, Inc., 335 So. 2d

128 (Ala. 1976), this Court adopted the Alabama Extended

Manufacturer's Liability Doctrine ("AEMLD"). The AEMLD is "a

judicially created accommodation of Alabama law to the

doctrine of strict liability for damage or injuries caused by

allegedly defective products." Keck v. Dryvit Sys., Inc., 830

So. 2d 1, 5 (Ala. 2002). This Court has explained that the

AEMLD did not subsume a common-law negligence or wantonness

claim. Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28

(Ala. 2003); Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901

So. 2d 84 (Ala. 2004).

"It must be remembered, ... that the AEMLD, as
established in Casrell and Atkins, supra, is 'an
example of judicial legislation,' not of legislative
enactment. Keck v. Dryvit Sys., Inc., 830 So. 2d 1,
8 (Ala. 2002). This Court warned last year in Keck
that '[j]udicial decision-making should not be seen
as the opportunity to legislate.' 830 So. 2d at 8.
Alabama remains a common-law state, and therefore
common-law tort actions 'so far as [they are] not
inconsistent with the Constitution, laws and
institutions of this state ... shall continue in
force, except as from time to time ... may be
altered or repealed by the Legislature.' § 1-3-1,
Ala. Code 1975. We will not presume to so define
the boundaries of the judicially created AEMLD so
that it subsumes the common-law tort actions of
negligence and wantonness against the retailer
defendants."

Tillman, 871 So. 2d at 34-35. We have also recognized that

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fraudulent suppression is a claim separate from an AEMLD

claim. Keck, supra. Accordingly, for purposes of this

certified question, we will not treat the Weekses' claims as

AEMLD claims governed by the principles of the AEMLD.

Wyeth argues, based on Pfizer, Inc. v. Farsian, 682 So.

2d 405 (Ala. 1996), that a plaintiff who in substance alleges

physical injury caused by a product has a products-liability

claim, no matter the label or labels he uses in his complaint,

and that, in a products-liability claim, the plaintiff must

prove that the defendant manufactured the product the

plaintiff claims injured him or her. We recognize that in

Farsian this Court contended that the plaintiff's claim was in

substance a products-liability claim and not a fraud claim as

he had asserted. In Farsian, a heart-valve recipient's valve

had not malfunctioned, although the valves in some other

patients who had received the valve made by the manufacturer

had malfunctioned. The federal court where the action was

filed certified the following question to this Court:

"'Does a heart valve implantee have a valid
cause of action for fraud under Alabama law if he
asserts that the valve's manufacturer fraudulently
induced him to have the valve implanted when the
damages he asserts do not include an injury-
producing malfunction of the product because the

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valve has been and is working properly?'"

682 So. 2d at 406. The manufacturer argued that, although the

plaintiff had alleged a risk of possible future malfunction of

the valve, it was uncontroverted that his valve was and had

been working properly. The manufacturer contended that the

plaintiff was really asserting a products-liability claim and

that, as such, the action did not accrue until there was an

injury-producing malfunction. The manufacturer further argued

that an allegation of fraud did not relieve the plaintiff from

having to prove an injury-producing malfunction. The

plaintiff argued that his fraud claim was not subsumed by

products-liability law and that he could recover damages even

if he could not prove that his valve was not yet

malfunctioning.

In addressing the question, we stated:

"The question certified to this Court concerns
whether [the plaintiff] may maintain a fraud claim
under Alabama law. We conclude that he may not.

"Regardless of how [the plaintiff] pleads his
claim, his claim is in substance a product
liability/personal-injury claim -- [the plaintiff]
seeks damages because of the risk that his heart
valve may one day fail. Alabama courts have never
allowed a recovery based on a product that, like
[the plaintiff]'s valve, is and has been working
properly. Each of our prior cases in which fraud or

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other intentional conduct was alleged has involved
a failure, a malfunction, or an accident that
involved the defendant's products and which injured
the plaintiff. See Quality Homes Co. v. Sears,
Roebuck & Co., 496 So. 2d 1 (Ala. 1986); Treadwell
Ford, Inc. v. Campbell, 485 So. 2d 312, 313 (Ala.
1986), appeal dismissed, 486 U.S. 1028, 108 S.Ct.
2007, 100 L.Ed.2d 596 (1988)."

682 So. 2d at 407. Ultimately, we stated:

"[The plaintiff]'s heart valve has not failed.
Instead, it has been working properly and as
intended by its manufacturer .... Although the
parties see different theories of this case -- [the
plaintiff] relying upon Alabama fraud law, while
[the manufacturer] argues in the context of product
liability law -- we conclude that the answer to the
certified question, whether it is couched in terms
of fraud law or in terms of product liability law,
must be that [the plaintiff] does not now have a
cause of action for damages, because the valve has
not failed."

682 So. 2d at 408. Farsian is distinguishable. This Court's

holding there was that, under either a fraud theory or a

products-liability theory, the plaintiff did not have a valid

cause of action because fear that the valve could fail in the

future was not, without more, a legal injury sufficient to

support his claim. In the present case, the Weekses are

arguing that Wyeth fraudulently misrepresented or suppressed

facts to Danny's physician regarding the dangers of the long-

term use of Reglan and that, as a result, Danny was injured.

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This is not a claim that the drug ingested by Danny was

defective; instead, it is a claim that Wyeth fraudulently

misrepresented or suppressed information about the manner in

which (i.e., the duration) the drug was to be taken. In

short, the Weekses' claim is based on what Wyeth said or did

not say about Reglan and their assertion that those statements

or omissions caused Danny's injuries. Farsian does not support

a conclusion by this Court that the Weekses' claim is in

substance a products-liability claim.

We note that Alabama's Pharmacy Act, § 34-23-1 et seq.,

Ala. Code 1975, permits a pharmacist to select in place of a

brand-name drug a less expensive drug product that is the

pharmaceutical and therapeutical equivalent of the brand-name

drug and that contains the same active ingredient or

ingredients and is the same dosage-form strength, unless the

prescribing physician indicates otherwise on the prescription.

§ 34-23-8, Ala. Code 1975. In the present case, it appears

that Danny's prescription did not prohibit the pharmacist from

substituting a generic drug for the brand-name drug.

"Currently all states have some form of generic substitution

law." PLIVA, Inc. v. Mensing, 564 U.S. , , 131 S.Ct.

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2567, 2583 (2011)(Sotomayor, J., dissenting). That a

pharmacist acted under § 34-23-8 and gave Danny a generic drug

does not preclude Danny's ability to assert a fraudulent-

misrepresentation claim against the brand-name manufacturer of

the drug. Additionally, many insurance plans are structured

to promote the use of generic drugs. PLIVA, 564 U.S. at

n.2, 131 S.Ct. at 2584 n.2. We now turn to the federal laws

governing prescription drugs.

Prescription drugs are unique because of the extensive

federal regulation of that product by the Food and Drug

Administration ("the FDA"). "Congress has established a

comprehensive regulatory scheme, administered by the FDA, to

control the design and distribution of prescription drugs."

Blackmon v. American Home Prods. Corp., 328 F. Supp. 2d 659,

665 (S.D. Tex. 2004)(citing 21 U.S.C. §§ 301-393). The FDA

has the ultimate authority to determine whether a new

prescription drug is safe and effective for use. 21 U.S.C. §§

355(a) and (d)(prohibiting the distribution of a new drug

without FDA approval of a new-drug application showing the

drug to be safe and effective). The approval process begins

with an investigational new-drug application ("IND") submitted

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to the FDA, which includes information about the chemistry,

manufacturing, pharmacology, and toxicology of the drug. See

21 U.S.C. § 355(b); 21 C.F.R. § 312.21. The IND also includes

pre-clinical data (animal pharmacology and toxicology), and

protocols for human testing must be detailed.4

After clinical trials on humans have been completed, the

manufacturer may submit a new-drug application ("NDA") to the

FDA. The manufacturer must present "substantial evidence that

the drug will have the effect it purports or is represented to

have under the conditions of use prescribed, recommended, or

suggested in the proposed labeling." 21 U.S.C. § 355(d)(5).

The NDA shall include: (1) reports of the clinical trials and

testing done to determine the safety and effectiveness of the

4
The clinical phase of testing on human subjects is
divided into three phases: Phase one involves about 20 to 100
healthy, nominally paid volunteers and is designed to test for
safety and tolerability (21 C.F.R. § 312.21(a)); phase two
involves several hundred unpaid volunteers diagnosed with a
particular condition and assesses the preliminary efficacy of
the drug as well as safety and tolerability (21 C.F.R. §
312.21(b)); and phase three involves hundreds to several
thousands of patients and is designed to evaluate the safety
and efficacy of the drug on a larger segment of the population
(21 C.F.R. § 312.21(c)). The FDA may require phase-four
studies concurrent with market approval to conduct
postmarketing reports in drugs intended to treat life-
threatening and severely debilitating illnesses. 21 C.F.R §
312.95
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drug; (2) the complete ingredients or components of the drug;

(3) the composition of the drug; (4) a complete description of

the manufacturing, processing, and packaging methods and

controls; (5) samples of the drug and its components (if

requested); and (6) samples of the proposed labeling. 21

U.S.C. § 355(b)(1). The NDA also must disclose all the

investigators who worked in clinical trials of the drug, as

well as their reports. Also, an NDA must include the patent

number and expiration dates for any patents related to or

impacted by the drug. 21 U.S.C. § 355(b)(1). The patent is

generally good for 20 years, giving the manufacturer (drug

developer) the exclusive right to make and sell the drug

during that period. 35 U.S.C. § 154(a)(2). The manufacturer

make seek a five-year extension of the patent under 35 U.S.C.

§ 156(g)(6)(A).

When the patent on a brand-name drug expires, generic

manufacturers may seek to replicate a generic version.

Generic versions of brand-name drugs contain the same active

ingredient as the brand-name original. United States v.

Generix Drug Corp., 460 U.S. 453 (1983). To expedite the

approval process for generic drugs in order to bring

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prescription-drug costs down while at the same time preserving

patent protections for brand-name drugs, Congress adopted the

Drug Price Competition and Patent Term Restoration Act of

1984. 21 U.S.C. § 355. This Act, also known as the Hatch-

Waxman Act, provides for an abbreviated new-drug-application

("ANDA") process for the approval of generic versions of

brand-name drugs. The ANDA relies on the FDA's previous

determination that the brand-name drug is safe and effective.

See Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 675

(1990)("The ANDA applicant can substitute bioequivalence data

for the extensive animal and human studies of safety and

effectiveness that must accompany a full new drug

application."). This allows an applicant for a generic

version of a drug to avoid the costly and time-consuming

process associated with an NDA,5 which allows the

5
The marketing of brand-name drugs also adds to the
expense of the brand-name drugs. "The prescription drug
industry is subject to extensive federal regulation, including
the now familiar requirement that prescription drugs be
dispensed only upon a physician's prescription. In light of
this requirement, pharmaceutical companies have long focused
their direct marketing efforts not on the retail pharmacies
that dispense prescription drugs but on the medical
practitioners who possess the authority to prescribe the drugs
in the first place. Pharmaceutical companies promote their
products to physicians through a process called 'detailing'
whereby employees known as 'detailers' or 'pharmaceutical
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dissemination of low-cost generic drugs. See H.R. Rep. No.

98–857 (Part I) at 14 (June 21, 1984). A generic manufacturer

is not entitled to all data in the master file controlled by

the FDA because some data may constitute trade secrets

belonging to the brand-name manufacturer. 21 C.F.R. §

314.430. At the same time, Congress sought to protect brand-

name manufacturers whose patent rights could be threatened by

the marketing of generic versions of their patented

innovations. See American Bioscience, Inc. v. Thompson, 243

F.3d 579, 580 (D.C. Cir. 2001); Purepac Pharm. Co. v.

Thompson, 238 F. Supp. 2d 191 (D. D.C. 2002).

Brand-name manufacturers have a duty to supply the FDA

with "postmarketing reports," which include reports of any

serious and unexpected adverse reactions suffered by a user

of a drug. 21 C.F.R. § 314.80. The brand-name manufacturer

must also submit annual reports to the FDA on significant

information, including information that might affect the

safety, effectiveness, or labeling of the product. 21 C.F.R.

sales representatives' provide information to physicians in
the hopes of persuading them to write prescriptions for the
products in appropriate cases." Christopher v. SmithKline
Beecham Corp., U.S. , , 132 S.Ct. 2156, 2163
(2012)(footnote omitted).
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§ 314.81. A generic manufacturer is likewise required to

submit these reports to the FDA. 21 C.F.R. § 314.98. However,

brand-name manufacturers and generic manufacturers have

different federal drug-labeling responsibilities.

"A brand-name manufacturer seeking new drug approval
is responsible for the accuracy and adequacy of its
label. See, e.g., 21 U.S.C. §§ 355(b)(1), (d); Wyeth
[v. Levine, 555 U.S. 555], 570-571 [(2009)]. A
manufacturer seeking generic drug approval, on the
other hand, is responsible for ensuring that its
warning label is the same as the brand name's. See,
e.g., § 355(j)(2)(A)(v); § 355(j)(4)(G); 21 CFR §§
314.94(a)(8), 314.127(a)(7)."

PLIVA, 564 U.S. at , 131 S.Ct. at 2574. "Drug labels are

subject to change. New risks may become apparent only after

the drug has been used more widely and for longer periods."

Mensing v. Wyeth, Inc., 588 F.3d 603, 606 (8th Cir. 2009),

reversed on other grounds, PLIVA, supra. Under the "Changes

Being Effected" or "CBE" rule, a brand-name manufacturer, upon

discovering a clinically significant hazard, may modify its

label to "add or strengthen a contraindication, warning,

precaution, or adverse reaction" without FDA approval. 21

C.F.R. § 314.70(c)(6)(iii)(A). Ultimately, the FDA will

review any CBE modification to a label. 21 C.F.R. §

314.70(c)(7). If the FDA rejects the change, it may order the

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manufacturer to cease distribution of the drug with the

revised label. 21 C.F.R. § 314.70(c)(7).

A "label" is defined as "a display of written, printed,

or graphic matter upon the immediate container of any article

...." 21 U.S.C. § 321(k). "'[L]abeling' means all labels and

other written, printed, or graphic matter (1) upon any article

or any of its containers or wrappers, or (2) accompanying such

article." 21 U.S.C. § 321(m). The FDA interprets "labeling"

broadly, to include:

"Brochures, booklets, mailing pieces, file cards,
bulletins, calendars, price lists, catalogs, house
organs, letters, motion picture films, film strips,
lantern slides, sound recordings, exhibits,
literature, and reprints and similar pieces of
printed, audio, or visual matter descriptive of a
drug and references published (for example, the
'Physicians Desk Reference') for use by medical
practitioners, pharmacists, or nurses, containing
drug information supplied by the manufacturer,
packer, or distributor of the drug ...."

21 C.F.R. § 202.1(l)(2). The FDA includes in its

interpretation of labeling "Dear Doctor" letters, PLIVA, 564

U.S. at , 131 S.Ct. at 2576, which are letters drug

manufacturers send to health-care providers informing them of

critical newly discovered risks or side effects of a

medication.

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The FDA has determined that a generic manufacturer cannot

unilaterally strengthen a warning label for a generic drug or

send a "Dear Doctor" letter under the CBE rule because doing

so would violate the statutes and regulations requiring the

label of a generic drug to match the brand-name manufacturer's

label. PLIVA, 564 U.S. at , 131 S.Ct. at 2575.

"Federal regulations applicable to generic drug
manufacturers directly conflict with, and thus
preempt, state laws that hold generic drug
manufacturers liable for inadequate warning labels
on their products. Mensing, 131 S.Ct. at 2578.
Under the Federal Food, Drug, and Cosmetic Act, 21
U.S.C. § 301 et seq., a manufacturer seeking federal
approval to market a new drug must prove that it is
safe and effective and that the proposed label is
accurate and adequate. 21 U.S.C. § 355(b)(1). By
contrast, under the Drug Price Competition and
Patent Term Restoration Act, known as the
Hatch–Waxman Amendments, generic drug formulations
can gain FDA approval by showing bioequivalence to
a reference-listed drug that has already been
approved by the FDA. 21 U.S.C. § 355(j)(2)(A). A
generic drug application must also show that 'the
labeling proposed for the new drug is the same as
the labeling approved for the listed drug.' 21
U.S.C. § 355(j)(2)(A)(v). Therefore, rather than a
duty to warn, 'generic manufacturers have an ongoing
federal duty of sameness' regarding their warning
labels. Mensing, 131 S.Ct. at 2574. Under the same
rules, generic drug manufacturers may not issue
additional warnings through Dear Doctor letters, nor
may they imply in any way that there is a
therapeutic difference between their product and the
name-brand drug. Id. at 2576."

Phelps v. Wyeth, Inc., 857 F. Supp. 2d 1114, 1133 (D. Or.

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2012)(emphasis added). According to the FDA, if a generic

manufacturer believes that stronger warnings are needed, then

the manufacturer is required to propose such changes to the

FDA, and, if the FDA agrees that such changes are necessary,

the FDA will work with the brand-name manufacturer to create

a new label for both the brand-name and generic drug. PLIVA,

564 U.S. at , 131 S.Ct. at 2576.

The Supreme Court, in two cases, has addressed the extent

to which manufacturers may change their labels after FDA

approval. We note that, because of the extensive federal

regulations, both the manufacturers of brand-name drugs and

generic drugs in those cases argued that the federal

regulations preempted state-law claims. In Wyeth v. Levine,

555 U.S. 555 (2009), the plaintiff developed gangrene and her

forearm had to be amputated when a physician's assistant

injected her artery with the anti-nausea drug Phenergan by

using the "IV push" method of intravenous injection. She sued

Wyeth, the manufacturer of Phenergan, for failing to provide

an adequate warning about the different risks involved with

the various methods of administering the drug. She relied on

common-law negligence and strict-liability theories. A jury

21
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found that Wyeth had failed to provide an adequate warning

about the risks involved when Phenergan is administered by

the IV push method. On appeal, Wyeth argued that the

plaintiff's failure-to-warn claims were preempted by federal

regulations regarding drug labeling because it was impossible

for a manufacturer to comply with both state laws and federal-

labeling obligations. Wyeth also argued that recognition of

state-law suits would undermine Congress's intent to entrust

labeling to the expertise of the FDA. The Supreme Court

rejected both contentions and held that there was no

preemption. The Supreme Court concluded that Wyeth failed to

demonstrate that it was impossible for it to comply with both

federal and state requirements, and it noted that state-law

claims are an important complement to the FDA's regulation of

prescription drugs. The Supreme Court stated:

"In keeping with Congress' decision not to pre-
empt common-law tort suits, it appears that the FDA
traditionally regarded state law as a complementary
form of drug regulation. The FDA has limited
resources to monitor the 11,000 drugs on the market,
and manufacturers have superior access to
information about their drugs, especially in the
postmarketing phase as new risks emerge. State tort
suits uncover unknown drug hazards and provide
incentives for drug manufacturers to disclose safety
risks promptly. They also serve a distinct
compensatory function that may motivate injured

22
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persons to come forward with information. Failure-
to-warn actions, in particular, lend force to the
[Federal Food, Drug, and Cosmetic Act]'s premise
that manufacturers, not the FDA, bear primary
responsibility for their drug labeling at all times.
Thus, the FDA long maintained that state law offers
an additional, and important, layer of consumer
protection that complements FDA regulation."

555 U.S. at 578-79 (footnote omitted).

PLIVA, supra, also involved a preemption claim regarding

labels, but the manufacturer there produced the generic

version of a brand-name drug. "The question presented [was]

whether federal drug regulations applicable to generic drug

manufacturers directly conflict with, and thus pre-empt, these

state-law claims." 564 U.S. at , 131 S.Ct. at 2572. The

FDA had issued a labeling requirement regarding Reglan, the

brand name of metoclopramide, the generic drug at issue in the

present case. The plaintiffs in PLIVA were prescribed Reglan

but received the generic form of the drug, which contained the

same labeling information the FDA had approved for the brand-

name drug. According to the FDA, 57 Fed. Reg. 17961 (1992)

requires a generic-drug manufacturer's labeling to be the same

as the brand-name-drug manufacturer's labeling because the

brand-name drug is the basis for the FDA's approval of the

generic drug. 564 U.S. at ___, 131 S.Ct. at 2575. By 2009,

23
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the FDA had ordered a "black box" warning for Reglan

concerning the dangers associated with its long-term use. The

plaintiffs had suffered severe neurological reactions from

taking the generic form of the drug and had brought state-law

tort claims against the manufacturers of the generic form of

the drug for failing to warn them of such danger. The basis

of the plaintiffs' claims was that the warning labels for the

generic drug were inadequate and that the generic

manufacturers had a duty to strengthen their warning labels

under the FDA's CBE process. 564 U.S. at , 131 S.Ct. at

2575. The Supreme Court found that the FDA's federal-labeling

requirement preempted the plaintiffs' state-law claims against

the manufacturers of the generic drug because it would have

been impossible for the generic manufacturers to change their

warning labels without violating the federal requirement that

the warning on a generic drug match the warning on its brand-

name counterpart.

"[B]rand-name and generic drug manufacturers have
different federal drug labeling duties. A brand-
name manufacturer seeking new drug approval is
responsible for the accuracy and adequacy of its
label. See, e.g., 21 U.S.C. §§ 355(b)(1), (d);
Wyeth [v. Levine], [555 U.S. 555] at 570-571, 129
S.Ct. 1187 [(2009)]. A manufacturer seeking generic
drug approval, on the other hand, is responsible for

24
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ensuring that its warning label is the same as the
brand name's. See, e.g., § 355(j)(2)(A)(v); §
355(j)(4)(G); 21 C.F.R. §§ 314.94(a)(8),
314.127(a)(7)."

564 U.S. at , 131 S.Ct. at 2574. The Supreme Court held

that because the FDA prevented the generic manufacturers from

independently changing the safety label on their generic

drugs, "it was impossible for the Manufacturers to comply with

both their state-law duty to change the label and their

federal law duty to keep the label the same." 564 U.S. at

___, 131 S.Ct. at 2578.

The Supreme Court recognized in PLIVA the seeming

contradiction in preempting claims against a generic

manufacturer in PLIVA but allowing state-law tort claims in

Wyeth:

"We recognize that from the perspective of [the
plaintiffs], finding pre-emption here but not in
Wyeth makes little sense. Had [the plaintiffs]
taken Reglan, the brand-name drug prescribed by
their doctors, Wyeth would control and their
lawsuits would not be pre-empted. But because
pharmacists, acting in full accord with state law,
substituted generic metoclopramide instead, federal
law pre-empts these lawsuits. See, e.g., Minn. Stat.
§ 151.21 (2010) (describing when pharmacists may
substitute generic drugs); La. Rev. Stat. Ann. §
37:1241(A)(17) (West 2007) (same). We acknowledge
the unfortunate hand that federal drug regulation
has dealt [the plaintiffs] and others similarly
situated.9

25
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"But 'it is not this Court's task to decide
whether the statutory scheme established by Congress
is unusual or even bizarre.' Cuomo v. Clearing House
Assn., L.L.C., 557 U.S. 519, 556 (2009) (Thomas, J.,
concurring in part and dissenting in part) (internal
quotation marks and brackets omitted). It is beyond
dispute that the federal statutes and regulations
that apply to brand name manufacturers are
meaningfully different than those that apply to
generic drug manufacturers. Indeed, it is the
special, and different, regulation of generic drugs
that allowed the generic drug market to expand,
bringing more drugs more quickly and cheaply to the
public. But different federal statutes and
regulations may, as here, lead to different pre-
emption results. We will not distort the Supremacy
Clause in order to create similar pre-emption across
a dissimilar statutory scheme. As always, Congress
and the FDA retain the authority to change the law
and regulations if they so desire.

"9That said, the dissent overstates what it
characterizes as the 'many absurd consequences' of
our holding. Post, [131 S.Ct.] at 2592. First, the
FDA informs us that '[a]s a practical matter,
genuinely new information about drugs in long use
(as generic drugs typically are) appears
infrequently.' U.S. Brief 34–35. That is because
patent protections ordinarily prevent generic drugs
from arriving on the market for a number of years
after the brand-name drug appears. Indeed,
situations like the one alleged here are apparently
so rare that the FDA has no 'formal regulation'
establishing generic drug manufacturers' duty to
initiate a label change, nor does it have any
regulation setting out that label-change process.
Id., at 20–21. Second, the dissent admits that, even
under its approach, generic drug manufacturers could
establish pre-emption in a number of scenarios.
Post, [131 S.Ct.] at 2588–2589."

26
1101397

564 U.S. at , 131 S.Ct. at 2581-82.

As noted in the facts set out in the certified question,

other federal courts applying Alabama law have held that

Alabama law does not allow a person who consumed a generic

version of a brand-name drug to sue the brand-name

manufacturer based on fraudulent misrepresentation. In Mosley

v. Wyeth, Inc., 719 F. Supp. 2d 1340 (S.D. Ala. 2010), the

plaintiffs did not ingest Reglan but took a generic equivalent

manufactured by a generic manufacturer. They sued the brand-

name manufacturers of Reglan alleging, among other things,

negligent and fraudulent misrepresentation regarding the

warnings contained in the labels the plaintiffs argued the

brand-name manufacturers knew would be relied upon by generic

manufacturers in generating the warning labels for the generic

version of the drug. The federal court held that the

plaintiffs could not rely on any allegedly negligent

misrepresentations made by the brand-name manufacturers to

support their claim of negligent misrepresentation because the

brand-name manufacturers did not owe a duty to the plaintiffs,

who had ingested a generic version. The court also stated

that the plaintiffs' claim of negligent misrepresentation

27
1101397

should fail because the brand-name manufacturers did not

engage in any business transaction with the plaintiffs. With

regard to fraudulent misrepresentation, the court held that

the plaintiffs failed to present any binding authority for the

assertion that a brand-name manufacturer owed a duty to the

consumer of a generic version of its product and failed to

cite any binding authority for the contention that an injury

resulting from consuming a generic drug could be considered to

be proximately caused by a brand-name manufacturer's alleged

misrepresentation regarding the brand-name version of the

generic drug. The court also noted that the fact that federal

law allowed a generic manufacturer to streamline the approval

process by relying on the initial warning labels provided by

the brand-name manufacturers did not create a duty between the

brand-name manufacturers and the consumer of the generic

version because, after the ANDA process, generic manufacturers

become responsible for their own warning labels and any

necessary revisions to those labels.

Mosley is distinguishable from the present case. The

Weekses are not arguing that Wyeth owed them a duty. Instead,

they are arguing that Wyeth owed Danny Weeks's physician a

28
1101397

duty and that, under the learned-intermediary doctrine, the

Weekses are entitled to rely on the representations made to

Danny's physician. Also, we note that Mosley was issued

before the United States Supreme Court in PLIVA, supra,

expressly found that because it was impossible for the generic

manufacturers to comply with both their state-law duty to

change the drug label to a safer label adequately warning of

the dangers inherent in long-term use and their federal-law

duty to keep the label the same as the brand-name

manufacturer's label, any state-law claims against a generic

manufacturer were preempted. Reliance upon the reasoning in

Mosley that a generic manufacturer is responsible for its own

warning labels and revisions of those labels is unsound.

In Overton v. Wyeth, Inc. (No. CA 10-0491-KD-C, March

15, 2011) (S.D. Ala. 2011)(not reported in F. Supp. 2d), the

brand-name manufacturers filed a motion to dismiss the

plaintiffs' state-law claims of breach of warranty, fraudulent

misrepresentation, and negligent misrepresentation where the

plaintiffs had ingested the generic versions of the brand-name

drug. The plaintiffs argued that the brand-name manufacturers

placed false and misleading information in their labels, when

29
1101397

they knew the labels would be relied upon by the generic

manufacturers in generating their own labels, and that their

doing so was a direct and proximate cause of the plaintiffs'

injuries. The federal court stated that the dispositive issue

on the plaintiffs' misrepresentation claims was whether the

brand-name manufacturers owed any duty to plaintiffs who

ingested the generic version of their brand-name drug. The

federal court held that the plaintiffs presented no evidence

indicating that the brand-name manufacturers owed a duty to

consumers of the generic version of the drug so that the

plaintiffs' injuries could be considered to have been a

proximate consequence of a brand-name manufacturers' alleged

misrepresentation regarding the brand-name drug. The court

noted that FDA regulations could not provide the requisite

duty element because federal law allows a generic manufacturer

to streamline the approval process by relying on the initial

warning labels provided by the brand-name manufacturer, but

that the generic manufacturer still had the burden of showing

that its warning label adequately described the risk

associated with the drug. "In other words, after the initial

approval (ANDA approval), the generic manufacturers become

30
1101397

responsible for their own warning labels and any necessary

revisions." Note 9. Overton was issued before the Supreme

Court decided PLIVA. Accordingly, the federal court's

conclusion in Overton that a generic manufacturer becomes

responsible for its own warning label after the ANDA process

is incorrect.

In Simpson v. Wyeth, Inc. (No. 7:10-cv-01771-HGD,

December 9, 2010)(N.D. Ala. 2010)(not reported in F. Supp.

2d), the federal court held that the plaintiffs, who had

ingested only the generic version of Reglan, could not recover

for the alleged fraudulent misrepresentations made to the

plaintiffs' doctor by the manufacturers of Reglan. The brand-

name manufacturers argued that, because they did not

manufacture the product the plaintiffs had ingested and that

allegedly had caused their injuries, the brand-name

manufacturers could not be held liable. The plaintiffs

alleged that their claim against the brand-name manufacturers

was based on the damage caused by the product as a result of

the brand-name manufacturers' misinformation to the

prescribing doctors, and the plaintiffs argued that they could

recover from the brand-name manufacturers even though they

31
1101397

were third parties to the alleged deceit or concealment

because, they argued, the deceit and concealment perpetrated

against the plaintiffs' prescribing doctors proximately caused

their damage. In support of their argument, the Simpson

plaintiffs relied on Delta Health Group, Inc. v. Stafford, 887

So. 2d 887 (Ala. 2004), which held that in certain

circumstances a plaintiff may properly state a fraud claim

even though the defendant's false representation is made to a

third party, rather than to the plaintiff. In discussing

Delta Health, the federal court noted that Delta Health went

on to hold that a plaintiff must establish that he or she

relied on the misrepresentation.

The federal court in Simpson stated that the problem with

the plaintiffs' reliance argument was that Alabama courts have

repeatedly rejected a theory of liability when the plaintiffs

have attempted to hold a brand-name manufacturer responsible

for damage caused by a generic brand of its drug, citing

Mosley, supra. The federal court also relied on the fact that

the FDA regulation did not require a brand-name manufacturer

to ensure that the label of the generic version is accurate,

citing Swicegood v. PLIVA, Inc., 543 F. Supp. 2d 1351 (N.D.

32
1101397

Ga. 2008). "Thus, it is the duty of the generic drug

manufacturer to correctly advise a physician using its product

of any associated risks, not the brand name manufacturer."

Simpson.

The federal court in Simpson went on to address the

learned-intermediary doctrine:

"Likewise, '[u]nder the learned intermediary
doctrine, a manufacturer's duty to warn is limited
to an obligation to advise a prescribing physician
of any potential dangers that may result from the
use of its product.' Walls v. [Alpharma] USPD,
[Inc.], 887 So. 2d [881,] 883 [(Ala. 2004)]. Thus,
the duty to warn of risks related to the use of a
drug is owed to the prescribing physician by the
drug manufacturer, not some other manufacturer of
the same or a similar product. As a matter of law,
the manufacturers of Reglan have no duty to
communicate any information regarding the risks of
taking this product to anyone other than their own
customers."

Like Mosley and Overton, Simpson was issued before PLIVA

was decided, and the federal court's conclusion in Simpson –-

that generic manufacturers have their own duty to correctly

advise a physician of risks associated with the generic drug

regardless of the fact that a generic label is required to be

the same as the brand-name label –- is questionable. Also,

the plaintiffs in Simpson argued that they should be allowed

to recover from the brand-name manufacturers even though they

33
1101397

were third parties to the alleged fraud perpetrated by those

manufacturers upon the plaintiffs' prescribing physicians.

The Simpson court stated that, even if the plaintiffs, under

the learned-intermediary doctrine, could prove that their

physicians had relied upon the brand-name manufacturer's

warning, the plaintiffs still had to demonstrate that the

brand-name manufacturer owed the plaintiffs a duty before the

brand-name manufacturer could be liable.

We recognize that other jurisdictions,6 primarily relying

on Foster v. American Home Products Corp., 29 F.3d 165 (4th

Cir. 1994), have concluded that a brand-name manufacturer does

not owe a duty to users of the generic version of the

6
It appears that this is the first time the highest court
of a state has addressed the issue whether a manufacturer of
a brand-name prescription drug may be held liable for the
warning label on the drug when the plaintiff ingested a
generic version of the brand-name drug. The numerous federal
courts sitting in diversity have addressed this issue,
predicting how the highest courts of those states would rule
on the issue. Erie R.R. v. Tompkins, 304 U.S. 64 (1938). But
see Huck v. Wyeth, Inc., [Ms. 12-0596, July 11, 2014] ___
N.W.2d ___ (Iowa 2014) (disagreeing with this Court's holding
on original submission in the present case, but expressly
acknowledging that Iowa law differs from Alabama law in that
Iowa law requires a plaintiff seeking recovery for the side
effects of a prescription drug who sues a pharmaceutical
company under any theory, including misrepresentation, to
prove that he or she was injured by using the prescription
drug manufactured or supplied by that pharmaceutical company).
34
1101397

prescription drug to warn those users of the dangers

associated with the drug.7 In Foster, the plaintiffs'

daughter died as a result of taking the generic form of

Phenergan, a brand-name drug. They sued the brand-name

manufacturer of Phenergan, alleging negligent

misrepresentation and strict liability. The federal district

court dismissed the strict-liability claim because the brand-

name manufacturer had not manufactured the generic version

taken by the daughter. However, the court allowed the

negligent-misrepresentation claim to proceed. The brand-name

7
See, e.g., Baymiller v. Ranbaxy Pharm., Inc., 894 F.
Supp. 2d 1302 (D. Nev. 2012); Phelps v. Wyeth, Inc., 857 F.
Supp. 2d 1114 (D. Or. 2012); Fisher v. Pelstring (No. 4:09-
cv-00252-TLW, July 28, 2010)(D. S.C. 2010)(not reported in F.
Supp. 2d)(collecting cases); Swicegood v. PLIVA, Inc., 543 F.
Supp. 2d 1351, 1358 (N.D. Ga. 2008); Goldych v. Eli Lilly &
Co. (No. 5:04-CV-1477, July 19, 2006)(N.D. N.Y. 2006)(not
reported in F. Supp. 2d); Colacicco v. Apotex, Inc., 432 F.
Supp. 2d 514, 538-43 (E.D. Pa. 2006), aff'd in part and rev'd
in part on other grounds, 521 F.3d 253 (3d Cir. 2008),
vacated, 129 S.Ct. 1578 (2009); Tarver v. Wyeth, Inc. (No.
Civ. A.3-04-2036, January 26, 2006)(W.D. La. 2006)(not
reported in F. Supp. 2d); Sharp v. Leichus (2004-CA-0643,
February 17, 2006)(Fla. Cir. Ct. 2006); Kelly v. Wyeth (CIV.
A. MICV 2003-03324B, May 6, 2005)(Super. Ct. Mass. 2005);
Sheeks v. American Home Prods. Corp. (No. 02CV337, October 15,
2004)(Colo. Dist. Ct. 2004); Doe v. Ortho-Clinical
Diagnostics, Inc., 335 F. Supp. 2d 614, 626-30 (M.D. N.C.
2004); Block v. Wyeth, Inc. (No. Civ.A.3:02-CV-1077, January
28, 2003)(N.D. Tex. 2003)(not reported in F. Supp. 2d); and
Beutella v. A.H. Robins Co. (No. 980502372, December 10, 2001)
(Utah Dist. Ct. 2001).
35
1101397

manufacturer appealed. The federal appeals court noted that,

under Maryland law, a plaintiff had to prove that the product

in question was defective, attribute that defect to the seller

of the product, and prove that there was a causal relationship

between the defect and the plaintiff's injury. The federal

appeals court stated that the plaintiffs were attempting to

hold the brand-name manufacturer liable for injuries caused by

another manufacturer's product and that Maryland courts would

reject an effort to circumvent the necessity that a defendant

be shown to have manufactured the product that caused the

injury before the defendant could be held liable for such

injury. The court held that the brand-name manufacturer did

not owe a duty of care to the plaintiffs, even though the

plaintiffs alleged that it was foreseeable to the brand-name

manufacturer of Phenergan that statements contained in its

label for the drug could result in injury to a user of a

generic version of the drug. The court stated:

"We do not accept the assertion that a generic
manufacturer is not responsible for negligent
misrepresentations on its product labels if it did
not initially formulate the warnings and
representations itself. When a generic manufacturer
adopts a name brand manufacturer's warnings and
representations without independent investigation,
it does so at the risk that such warnings and

36
1101397

representations may be flawed. In cases involving
products alleged to be defective due to inadequate
warnings, 'the manufacturer is held to the knowledge
and skill of an expert.... The manufacturer's status
as expert means that at a minimum he must keep
abreast of scientific knowledge, discoveries, and
advances and is presumed to know what is imparted
thereby.' Owens-Illinois v. Zenobia, 325 Md. 420,
601 A.2d 633, 639 (Md. 1992)(quoting Borel v.
Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1098
(5th Cir. 1973), cert. denied, 419 U.S. 869, 95
S.Ct. 127, 42 L.Ed.2d 107 (1974)). The same
principle applies in the instant case; as an expert,
a manufacturer of generic products is responsible
for the accuracy of labels placed on its products.
Although generic manufacturers must include the same
labeling information as the equivalent name brand
drug, they are also permitted to add or strengthen
warnings and delete misleading statements on labels,
even without prior FDA approval. 21 C.F.R. § 314.70
(1993). The statutory scheme governing premarketing
approval for drugs simply does not evidence
Congressional intent to insulate generic drug
manufacturers from liability for misrepresentations
made regarding their products, or to otherwise alter
state products liability law. Manufacturers of
generic drugs, like all other manufacturers, are
responsible for the representations they make
regarding their products.

"We also reject the contention that a name brand
manufacturer's statements regarding its drug can
serve as the basis for liability for injuries caused
by another manufacturer's drug. Name brand
manufacturers undertake the expense of developing
pioneer drugs, performing the studies necessary to
obtain premarketing approval, and formulating
labeling information. Generic manufacturers avoid
these expenses by duplicating successful pioneer
drugs and their labels. Name brand advertising
benefits generic competitors because generics are
generally sold as substitutes for name brand drugs,

37
1101397

so the more a name brand drug is prescribed, the
more potential sales exist for its generic
equivalents. There is no legal precedent for using
a name brand manufacturer's statements about its own
product as a basis for liability for injuries caused
by other manufacturers' products, over whose
production the name brand manufacturer had no
control. This would be especially unfair when, as
here, the generic manufacturer reaps the benefits of
the name brand manufacturer's statements by copying
its labels and riding on the coattails of its
advertising. The premarketing approval scheme
Congress established for generic equivalents of
previously approved drugs cannot be construed to
create liability of a name brand manufacturer when
another manufacturer's drug has been consumed."

Foster, 29 F.3d at 169-70.

The plaintiffs in Foster argued that the brand-name

manufacturers owed a duty because it was foreseeable that

misrepresentations regarding Phenergan could result in

personal injury to the users of the generic equivalents of

Phenergan. The Foster court concluded that to impose duty in

that case would be to stretch the concept of foreseeability

too far. "The duty required for the tort of negligent

misrepresentation arises when there is 'such a relation that

one party has the right to rely for information upon the

other, and the other giving information owes a duty to give it

with care,'" and the court concluded that no such relationship

existed between the plaintiff who was injured by a product

38
1101397

that was not manufactured by the brand-name manufacturer. 29

F.3d at 171 (quoting Weisman v. Connors, 312 Md. 428, 443-44,

540 A.2d 783, 790 (1988)).

A few courts have held otherwise. In Conte v. Wyeth,

Inc., 168 Cal. App. 4th 89, 85 Cal. Rptr. 3d 299 (2008), the

California Court of Appeals, applying state negligence law,

held as a matter of first impression that a manufacturer of a

brand-name drug may be held liable for injuries suffered by a

consumer who purchased a generic form of the drug if the

consumer's injuries were foreseeably caused by the negligence

of or an intentional misrepresentation by the brand-name

manufacturer that developed the drug. Conte, the plaintiff in

that case, sued the brand-name manufacturer and three generic

manufacturers of Reglan and its generic version,

metoclopramide, alleging that her use of metoclopramide over

a four-year period caused her to develop tardive dyskinesia.

Conte had ingested only the generic drug. "The crux of

Conte's claims against all of the drug company defendants

[was] that she was injuriously overexposed to metoclopramide

due to their dissemination of false, misleading and/or

incomplete warnings about the drug's side effect." 168 Cal.

39
1101397

App. 4th at 95, 85 Cal. Rptr. 3d at 305. The trial court

entered a summary judgment for all the defendant drug

manufacturers, and Conte appealed. The California appellate

court reversed the summary judgment in favor of the brand-name

manufacturer after concluding that Conte had presented a

material factual dispute as to whether her doctor had in fact

relied on information disseminated by the brand-name

manufacturer of Reglan. Specifically, the appellate court

held that the brand-name manufacturer knew or should have

known "that a significant number of patients whose doctors

rely on its product information for Reglan are likely to have

generic metoclopramide prescribed or dispensed to them" and

that the brand-name manufacturer's "duty of care in

disseminating product information extends to those patients

who are injured by generic metoclopramide as a result of

prescriptions written in reliance on [the brand-name

manufacturer's] product information for Reglan." 168 Cal.

App. 4th at 107, 85 Cal. Rptr. 3d at 315. The appellate court

affirmed the summary judgment in favor of each of the three

generic manufacturers on the ground that Conte had conceded on

appeal that there was no evidence indicating that the generic

40
1101397

manufacturers had disseminated any information concerning

their generic product.

In Kellogg v. Wyeth, 762 F. Supp. 2d 694 (D. Vt. 2010),

the Vermont federal district court held that a brand-name

manufacturer of a drug has a duty to use reasonable care to

avoid causing injury to consumers who have been prescribed the

generic bioequivalent of its drug. Kellogg, the plaintiff in

that case, sued the brand-name manufacturer and generic

manufacturers of metoclopramide, alleging that her long-term

ingestion of metoclopramide caused her to develop tardive

dyskinesia; Kellogg had ingested only the generic drug. The

crux of Kellogg's argument was that all the defendant

manufacturers were liable because, she argued, they failed to

adequately warn her doctors about the risks associated with

the long-term use of metoclopramide. Both the brand-name

manufacturer and each of the generic manufacturers filed a

motion for a summary judgment on Kellogg's failure-to-warn

claim; the federal district court denied the motions. The

court held that, because all the parties agreed that the

defendant drug manufacturers owed a duty to provide adequate

warning to Kellogg's prescribing physicians, a jury question

41
1101397

existed as to whether the defendant drug manufacturers had

provided accurate and adequate warnings. The federal

district court further held that the defendant drug

manufacturers were not entitled to summary judgments for lack

of a triable issue on proximate cause. Specifically, the

court stated that "[a] reasonable jury could conclude that

inadequate, misleading and inaccurate information provided by

the [defendant drug manufacturers] was a proximate cause of

[Kellogg's] injury." 762 F. Supp. 2d at 702. The federal

district court finally denied the summary-judgment motion

filed by the brand-name manufacturer on Kellogg's negligent-

misrepresentation, fraud, and fraud-by-concealment claims in

which Kellogg alleged that the brand-name manufacturer of

Reglan was liable for failing to use due care in disseminating

information about the drug to physicians, thereby causing the

physicians to over-prescribe metoclopramide to her. The

brand-name manufacturer agreed that it had a duty to provide

adequate warnings about Reglan to physicians. However, it

contended that it owed no duty to a doctor who prescribes

Reglan if the pharmacy fills the doctor's prescription with a

generic brand of the drug. Applying Vermont's negligence law,

42
1101397

the federal district court noted that "a brand-name

manufacturer owes a duty to use reasonable care to avoid

causing injury to consumers of the generic bioequivalents of

its drugs," 762 F. Supp. 2d at 706, because "it is reasonably

foreseeable that a physician will rely upon a brand name

manufacturer's representations –- or the absence of

representations –- about the risk of side effects of its drug,

when deciding to prescribe the drug for a patient, regardless

of whether the pharmacist fills the prescription with a

generic form of the drug." 762 F. Supp. 2d at 709. The

federal district court therefore held that Kellogg had

presented triable issues of fact regarding whether "her

doctors relied on inaccurate and misleading information –- or

the absence of accurate information -– from [the brand-name

manufacturer] concerning the risks and effects of long-term

use of [metoclopramide]." 762 F. Supp. 2d at 710.

In looking at the reasoning in Foster and Conte, we note

that the Foster court relied on the finding that a generic

manufacturer of a prescription drug is responsible for the

accuracy of labels placed on its product. Foster was issued

before the Supreme Court decided PLIVA, in which it held that

43
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a generic manufacturer's label must be identical to the brand-

name label and that a generic manufacturer cannot unilaterally

change its label to update a warning. The Foster court's

finding that manufacturers of generic drugs are responsible

for the representations they make in their labeling regarding

their products is flawed based on the "sameness" requirement

subsequently discussed in PLIVA.

Moreover, the analysis in Foster confuses strict

liability and tort law. The Foster court stated that there is

"[n]o legal precedent for using a name brand manufacturer's

statements about its own product as a basis for liability for

injuries caused by other manufacturers' products, over whose

production the name brand manufacturer had no control." 29

F.3d at 170. If a plaintiff brought a strict-liability claim

and the issue was one of a defect in production of the

product, then the Foster court's reasoning would be sound.

Certainly, a manufacturer will not be held liable for another

manufacturer's production, design, or manufacturing defect.

However, the Foster court's reasoning that a brand-name

manufacturer does not owe a duty to persons taking the generic

version of their drug because the brand-name manufacturer did

44
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not manufacture that drug is flawed when the cause of action

relates to the warnings contained in the labeling relating to

the drug and sound in tort. In Foster, the plaintiffs alleged

that it was the inadequate warning that caused their

daughter's death, not how the drug itself was produced.

Because a warning label is not a part of the manufacturing

process, we do not agree that the fact that a brand-name

manufacturer did not produce the version of the drug ingested

by the plaintiff bars the plaintiff's tort action when the

plaintiff is arguing that he or she was injured by a failure

to warn.

We recognize that the holding in PLIVA did not address

foreseeability as the Foster court did. However, the Supreme

Court concluded in PLIVA that the labeling for a generic drug

is required by federal regulations to be the same as the

labeling for the brand-name drug. Therefore, an omission or

defect in the labeling for the brand-name drug would

necessarily be repeated in the generic labeling, foreseeably

causing harm to a patient who ingested the generic product.

A brand-name manufacturer is well aware of the expiration of

its patent and well aware that a generic version of the drug

45
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will be made when that patent expires. It is recognized that

generic substitutions are allowed in all 50 states. A brand-

name manufacturer could reasonably foresee that a physician

prescribing a brand-name drug (or a generic drug) to a patient

would rely on the warning drafted by the brand-name

manufacturer even if the patient ultimately consumed the

generic version of the drug.

We now turn to the issue whether Wyeth owed a duty to the

Weekses as third parties to the alleged fraud in failing to

adequately warn of the risks of Reglan in its labeling. The

Weekses rely on Delta Health Group, Inc. v. Stafford, supra,

which involved an alleged misrepresentation made to a third

party. Tim Stafford and Lana Stafford alleged that Delta

Health Group and its insurer, Lumbermens Mutual Casualty

Company, had falsely accused Tim Stafford of pilfering from a

nursing home owned by Delta Health building material for use

on the Staffords' personal residence. After Delta Health

filed a claim with Lumbermens for its alleged loss and

assigned its rights to Lumbermens, Lumbermens sued Tim

Stafford, alleging conversion. The Staffords then sued Delta

Health and Lumbermens, alleging, among other things,

46
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fraudulent misrepresentation. This Court held that under

limited circumstances a plaintiff may properly state a fraud

claim based on a false representation to a third party rather

than to the plaintiff. This Court stated:

"We agree with Stafford that in certain limited
circumstances not relevant here a plaintiff may
properly state a fraud claim even though the
defendant makes a false representation to a third
party rather than to the plaintiff. However, we do
not read Thomas [v. Halstead, 605 So. 2d 1181 (Ala.
1992),] as excusing a plaintiff from the requirement
of establishing his reliance upon that
misrepresentation. Thomas appears to contemplate
that the plaintiff, in fact, has relied on the
defendant's misrepresentation, even though the
misrepresentation was made to another party. Neither
have we located any other authority that purports to
excuse a plaintiff in a fraud action from
establishing the element of reliance.

"In this case, the record is devoid of any
evidence tending to establish that Stafford relied
to his detriment on any of the alleged
misrepresentations made by Delta Health to
Lumbermens. For this reason, we conclude that
Stafford failed to produce sufficient evidence to
create a jury question on each of the elements
necessary for his fraud claim. Therefore, the trial
court erred in denying Delta Health's motion for a
judgment as a matter of law regarding Stafford's
fraud claim; that claim should not have been
submitted to the jury."

887 So. 2d at 899.

Delta Health is not the first time this Court has

addressed a fraud claim based on misrepresentations made not

47
1101397

to a plaintiff but to a third party. In Thomas v. Halstead,

605 So. 2d 1181 (Ala. 1992), a patient sued his dentist

alleging fraud, specifically alleging that the dentist had

obtained payment from the patient's insurer for services that

were never rendered. The patient had gone to see the

dentist, who took several X-rays of his mouth and told him he

needed additional dental work. The patient claimed that the

dentist was to submit a form to the patient's insurer to

determine the insurance coverage. Instead, the dentist

submitted a claim for the additional work on the patient's

teeth, which had never been done. The patient argued that,

even if the misrepresentation was not made directly to him, "a

misrepresentation, made to his insurance carrier, which is

legally obligated to pay valid claims submitted to it for

dental expenses incurred by him, is sufficient to satisfy the

misrepresentation element of fraud." 605 So. 2d at 1184.

"While generally '[a] stranger to a transaction ... has no

right of action [for fraud],' there is an exception to this

general rule: 'If a third person is injured by the deceit, he

may recover against the one who made possible the damages to

him by practicing the deceit in the first place.' 37 C.J.S.

48
1101397

Fraud § 60, p. 344 (1943), see Sims v. Tigrett, 229 Ala. 486,

158 So. 326 (1934)." 605 So. 2d at 1184.

Sims v. Tigrett, 229 Ala. 486, 158 So. 326 (1934),

involved deceit in the selling of bonds. This Court stated:

"But we may observe that if defendant caused the
representations to be made, and the public were
intended to be thereby induced to act upon them, and
plaintiff was within the class of those so
contemplated, the action for deceit against
defendant may be maintained by plaintiff, though
defendant did not sell the bonds to plaintiff, but
sold them to another, and he to plaintiff, both in
reliance on the truth of the representations. King
v. Livingston Mfg. Co., 180 Ala. 118, 126, 60 So.
143 [(1912)]; 26 C.J. 1121, §§ 47, 48."

229 Ala. at 491, 158 So. at 330.

Wyeth argues that Delta Health is distinguishable because

this Court has never extended third-party fraud beyond the

economic realm to claims alleging physical harm. We recognize

that Delta Health, Thomas, and Sims did not involve a claim of

physical injury. However, physical harm suffered by a

consumer of prescription medication would have been reasonably

contemplated by a manufacturer who made fraudulent statements

on the warning label related to that medication.

Wyeth also argues that this Court has never extended

third-party-fraud liability to a defendant who did not

49
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manufacture the product about which the plaintiff is

complaining. We again note that prescription medication is

unlike other consumer products. Unlike "construction

machinery," "lawnmowers," or "perfume," which are "used to

make work easier or to provide pleasure," a prescription drug

"may be necessary to alleviate pain and suffering or to

sustain life." Brown v. Superior Court of San Francisco, 44

Cal. 3d 1049, 1063, 245 Cal. Rptr. 412, 420, 751 P.2d 470, 479

(1988). Prescription medication is heavily regulated by the

FDA. It can be obtained only through a health-care provider

who can make a determination as to the benefits and risks of

a drug for a particular patient. Also, the Weekses' claims are

not based on the manufacturing of the product but instead

allege that the label –- drafted by the brand-name

manufacturer and required by federal law to be replicated

verbatim on the generic version of the medication –- failed to

warn. Moreover, the brand-name manufacturer is under a

continuing duty to supply the FDA with postmarketing reports

of serious injury and can strengthen its warnings on its own

accord. Wyeth v. Levine, supra; 21 C.F.R. § 201.57(c)(6)(I);

21 C.F.R. § 201.56(a)(2)-(b)(1). In contrast, a generic

50
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manufacturer's label must be the same as the brand-name

manufacturer's label, and the generic manufacturer cannot

unilaterally change its warning label.

We recognize that the plaintiff in Delta Health did not

succeed in his fraud claim because he failed to present

evidence indicating that he relied to his detriment on any of

the alleged misrepresentations made by his employer to the

employer's insurer. In a fraud case, detrimental reliance is

an essential aspect of showing that the injury suffered was

caused by the fraud. "[A] fraud claim fully accrues once any

legally cognizable damage has proximately resulted, i.e., once

the plaintiff has 'detrimentally' relied on the fraud." Ex

parte Haynes Downard Andra & Jones, LLP, 924 So. 2d 687, 694

(Ala. 2005). In the present case, the Weekses have alleged

that Danny's physician reasonably relied on the

representations made by Wyeth regarding the long-term use of

Reglan in prescribing Reglan to Danny. In other words, the

Weekses are arguing that if a defendant's misrepresentation to

a third party causes the third party to take actions resulting

in the plaintiff's injuries, then the factual causation link

is satisfied and that, here, a misrepresentation to Danny's

51
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physician would directly impact the medical care received by

Danny.

In Stone v. Smith, Kline & French Laboratories, 447 So.

2d 1301 (Ala. 1984), this Court adopted the learned-

intermediary doctrine in a case addressing whether a

manufacturer's duty to warn extends beyond the prescribing

physician to the physician's patient who would ultimately use

the drugs. The principle behind the learned-intermediary

doctrine is that prescribing physicians act as learned

intermediaries between a manufacturer of a drug and the

consumer/patient and that, therefore, the physician stands in

the best position to evaluate a patient's needs and to assess

the risks and benefits of a particular course of treatment for

the patient. A consumer can obtain a prescription drug only

through a physician or other qualified health-care provider.

21 U.S.C. § 353(b)(1). Physicians are trained to understand

the highly technical warnings required by the FDA in drug

labeling. 21 C.F.R. § 201.56. The learned-intermediary

doctrine was established in Marcus v. Specific

Pharmaceuticals, 191 Misc. 285, 77 N.Y.S.2d 508 (N.Y. Sup. Ct.

1948), as an absolute defense for "failure to warn" cases.

52
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Mitesh Bansilal Shah, Commentary, As a Matter of Fact or a

Matter of Law: The Learned Intermediary Doctrine in Alabama,

53 Ala. L. Rev. 1299, 1301 (2002).

"Prescription drugs are likely to be complex
medicines, esoteric in formula and varied in effect.
As a medical expert, the prescribing physician can
take into account the propensities of the drug, as
well as the susceptibilities of his patient. His is
a task of weighing the benefits of any medication
against its potential dangers. The choice he makes
is an informed one, an individualized medical
judgment bottomed on a knowledge of both patient and
palliative."

Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir. 1974).

The learned-intermediary doctrine recognizes the role of

the physician as a learned intermediary between a drug

manufacturer and a patient. As the United States Court of

Appeals for the Eleventh Circuit has explained:

"In cases involving complex products, such as
those in which pharmaceutical companies are selling
prescription drugs, the learned intermediary
doctrine applies. Under the learned intermediary
doctrine, a manufacturer's duty to warn is limited
to an obligation to advise the prescribing physician
of any potential dangers that may result from the
use of its product. This standard is 'an
understandable exception to the Restatement's
general rule that one who markets goods must warn
foreseeable ultimate users of dangers inherent in
his products.' As such, we rely on the expertise of
the physician intermediary to bridge the gap in
special cases where the product and related warning
are sufficiently complex so as not to be fully

53
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appreciated by the consumer. ... '[U]nder the
"learned intermediary doctrine" the adequacy of [the
defendant's] warning is measured by its effect on
the physician, ... to whom it owed a duty to warn,
and not by its effect on [the consumer].'"

Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1313-14 (11th

Cir. 2000)(citations omitted).

A prescription-drug manufacturer fulfills its duty to

warn the ultimate users of the risks of its product by

providing adequate warnings to the learned intermediaries who

prescribe the drug. Once that duty is fulfilled, the

manufacturer has no further duty to warn the patient directly.

However, if the warning to the learned intermediary is

inadequate or misrepresents the risk, the manufacturer remains

liable for the injuries sustained by the patient. The patient

must show that the manufacturer failed to warn the physician

of a risk not otherwise known to the physician and that the

failure to warn was the actual and proximate cause of the

patient's injury. In short, the patient must show that, but

for the false representation made in the warning, the

prescribing physician would not have prescribed the medication

to his patient.

Wyeth argues that there is no relationship between Wyeth

54
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and the Weekses so as to create a duty on Wyeth's part to

adequately warn the Weekses and that the simple fact that it

may be foreseeable that a physician would rely on Wyeth's

representations in its warning label in determining whether a

prescription drug originally manufactured by Wyeth was

appropriate for a particular patient did not create a

relationship between Wyeth and the patient. Wyeth argues:

"Here, the brand-name defendants had absolutely
no relationship with the Weekses. The Weekses never
met with any representative of the brand-name
defendants, transacted any business with the brand-
name defendants, or did anything else that could
have established the necessary relationship. Most
significantly, the Weekses concede that Mr. Weeks
didn't use the brand-name defendants' products. That
concession is fatal. Without some product-use link,
the Weekses can't establish a relationship; and
without a relationship, they can't prove a duty."

Wyeth's brief, p. 42.

Wyeth's argument completely ignores the nature of

prescription medication. The Weekses cannot obtain Reglan or

any other prescription medication directly from a

prescription-drug manufacturer.8 The only way for a consumer

to obtain a prescription medication is for a physician or

other medical professional authorized to write prescriptions

8
It is undisputed that Danny received metoclopramide
through a prescription written by his physician.
55
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(i.e., a learned intermediary) to prescribe the medication to

his or her patient. This Court has adopted the learned-

intermediary doctrine, which provides that a prescription-drug

manufacturer fulfills its duty to warn users of the risk

associated with its product by providing adequate warnings to

the learned intermediaries who prescribe the drug and that,

once that duty is fulfilled, the manufacturer owes no further

duty to the ultimate consumer. When the warning to the

prescribing health-care professional is inadequate, however,

the manufacturer is directly liable to the patient for damage

resulting from that failure. The substitution of a generic

drug for its brand-name equivalent is not fatal to the

Weekses' claim because the Weekses are not claiming that the

drug Danny ingested was defective; instead, the Weekses' claim

is that Wyeth fraudulently misrepresented or suppressed

information concerning the way the drug was to be taken and,

as discussed, the FDA mandates that the warning on a generic-

drug label be the same as the warning on the brand-name-drug

label and only the brand-name manufacturer may make unilateral

changes to the label.9

9
To allow labels on generic versions of a brand-name drug
to differ from the labels on the brand-name versions could not
56
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In support of its argument regarding lack of a

relationship, Wyeth cites Keck v. Dryvit Systems, Inc., 830

So. 2d 1 (Ala. 2002); State Farm v. Owen, 729 So. 2d 834 (Ala.

1998); DiBiasi v. Joe Wheeler Electric Membership Corp., 988

So. 2d 454 (Ala. 2008); and Thompson-Hayward Chemical Co. v.

Childress, 169 So. 2d 305 (Ala. 1964). Keck addressed the

question whether faux stucco was a fixture attached to a house

or part of the house in order to determine whether the AEMLD

applied when the faux stucco failed. Because the faux stucco

was not a "product" under the AEMLD, this Court turned to the

Uniform Commercial Code to determine if it was a "good" and

held that it was not. In short, this Court treated the faux

only insinuate that the generic versions were not the
bioequivalent of the brand-name versions, but could also
confuse physicians reviewing the different versions. The "FDA
'places a very high priority [on] assuring consistency in
labeling,' so as 'to minimize any cause for confusion among
health care professionals and consumers as well as to preclude
a basis for lack of confidence in the equivalency of generic
versus brand name products.'" Brief for the United States As
Amicus Curiae Supporting Respondents, at 4, in PLIVA, Inc. v.
Mensing, 564 U.S. ____, 131 S.Ct. 2567 (Nos. 09-993, 09-1039
and 09-1501) (alterations in original) (quoting Div. of
Generic Drugs, FDA, Policy and Procedure Guide 37 (1989)
(citing 57 Fed. Reg. 17,961 (1992))). Additionally, although
both the brand-name manufacturer and the generic manufacturer
have a continuing duty to report adverse reactions to the FDA,
it may be that only the brand-name manufacturer has all the
relevant data in light of trade-secrets concerns.
57
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stucco as part of the house, and because the plaintiffs, who

were not the first purchasers of the house, purchased the

house "as is," they had no claim against the manufacturer of

the faux stucco because there was no duty to disclose.

Owen held that an insurer had no duty to disclose that,

although premiums on homeowners' insurance were based on the

appraisal value of the insured property, the insurer would pay

no more than replacement value in the event of a loss. DiBiasi

involved an electrocution victim who was injured when he

grabbed electrical transmission lines hanging over the roof of

a house. The utility company that owned the pole to which the

lines were attached argued that it owed no duty (the city

supplied the electrical power) to the victim, who was

inspecting the roof of the house when, among other things,

there was no relationship shown between the owner of the

utility pole and the victim. The wire that electrocuted the

victim was owned by the city. In Thompson-Hayward, a case that

predates the judicial adoption of the AEMLD, this Court held

that the plaintiff's complaint failed to allege that the

defendant had manufactured an injurious herbicide or to allege

that the defendant sold the herbicide to the plaintiffs.

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These cases are easily distinguishable from this case.

Here, Wyeth authored the label with its warnings, and the

generic manufacturers, as required by FDA regulations, copied

that label verbatim. Wyeth continues to treat the Weekses'

fraud claim as a products-liability claim where privity is

needed.

In Carter v. Chrysler Corp., 743 So. 2d 456 (Ala. Civ.

App. 1998), the Court of Civil Appeals, quoting Hines v.

Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala. 1994),10

noted:

"'Our case law, however, makes it very
clear that in an action alleging
suppression of a material fact, a duty to
disclose may be owed to a person with whom
one has not had a contractual relationship
or other dealings. ...

"'The extent of a legal duty not to
make a false representation or to suppress
a material fact informs our analysis of
whether two parties have a sufficient
relationship on which to base a duty to
disclose. In Colonial Bank v. Ridley &
Schweigert, 551 So. 2d 390, 396 (Ala.
1989), this Court stated:

"'"There can be no

10
Hines was overruled on other grounds in Owen. The Court
of Civil Appeals noted that "the discussion in Hines
concerning the determination of whether a legal duty to
disclose exists remains precedential." 743 So. 2d at 461.
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actionable fraud without a breach
of a legal duty owed by the
defendant to the plaintiff.

"'"There is a duty not to
make a false representation to
those to whom a defendant
intends, for his own purposes, to
reach and influence by the
representation; to those to whom
he has a public duty created by
statute or pursuant to a statute;
and to those members of a group
or class that the defendant has
special reason to expect to be
influenced by the representation.
W. Prosser, Misrepresentation and
Third Persons, 19 Vand. L.Rev.
231, 254 (1966)."'

"655 So. 2d at 919-20 (emphasis added, footnote
omitted).

"The Court in Hines then applied these
principles to the particular question of the
manufacturer's duty to disclose the repairs to the
plaintiffs in the case before it:

"'It is evident from these principles
and our case law that the fact that two
parties have had no contractual
relationship or other dealings does not
preclude the finding of a legal duty not to
make a material misrepresentation or to
suppress a material fact. The absence of a
contractual relationship or other dealings,
therefore, likewise does not preclude the
finding of a relationship on which to base
a duty to disclose. Whether a duty to
disclose exists must be determined by
examining the particular facts of each
case.

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1101397

"'....'

"655 So. 2d at 920."

Carter, 743 So. 2d at 461-62 (some emphasis added). Stated

again, there is a duty not to make a false representation (1)

to those to whom a defendant intends, for his own purposes, to

reach and influence by the representation; (2) to those to

whom the defendant has a public duty created by statute or

pursuant to a statute; and (3) to those members of a group or

class that the defendant has special reason to expect will be

influenced by the representation.

Clearly, prescription drugs differ from lawnmowers,

automobiles, and other products because of the FDA's

unprecedented control and regulation of prescription drugs;

the FDA has the responsibility of weighing (in terms of

extremes) the potential benefit of lifesaving medication

against potential severe side effects. Those side effects

might not become apparent until after a drug has been on the

market, and even then the benefits of the drug may outweigh

the risks. Wyeth cannot argue that it owes no duty to the

Weekses because it lacks a relationship with them.

Conclusion

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We answer the certified question as follows: Under

Alabama law, a brand-name-drug company may be held liable for

fraud or misrepresentation (by misstatement or omission),

based on statements it made in connection with the manufacture

of a brand-name prescription drug, by a plaintiff claiming

physical injury caused by a generic drug manufactured by a

different company. Prescription drugs, unlike other consumer

products, are highly regulated by the FDA. Before a

prescription drug may be sold to a consumer, a physician or

other qualified health-care provider must write a

prescription. The United States Supreme Court in Wyeth v.

Levine recognized that Congress did not preempt common-law

tort suits, and it appears that the FDA traditionally regarded

state law as a complementary form of drug regulation: The FDA

has limited resources to monitor the approximately 11,000

drugs on the market, and manufacturers have superior access to

information about their drugs, especially in the postmarketing

phase as new risks emerge; state-law tort suits uncover

unknown drug hazards and provide incentives for drug

manufacturers to disclose safety risks promptly and serve a

distinct compensatory function that may motivate injured

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persons to come forward with information. Wyeth v. Levine,

555 U.S. at 578-79.

FDA regulations require that a generic manufacturer's

labeling for a prescription drug be exactly the same as the

brand-name manufacturer's labeling. The Supreme Court in

PLIVA held that it would have been impossible for the generic

manufacturers to change their warning labels without violating

the federal requirement that the warning on a generic drug

must match the warning on the brand-name version, preempting

failure-to-warn claims against generic manufacturers.

In the context of inadequate warnings by the brand-name

manufacturer placed on a prescription drug manufactured by a

generic manufacturer, it is not fundamentally unfair to hold

the brand-name manufacturer liable for warnings on a product

it did not produce because the manufacturing process is

irrelevant to misrepresentation theories based, not on

manufacturing defects in the product itself, but on

information and warning deficiencies, when those alleged

misrepresentations were drafted by the brand-name manufacturer

and merely repeated, as allowed by the FDA, by the generic

manufacturer.

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In answering the question of law presented to us by the

federal court, we emphasize the following: We are not turning

products-liability law (or tort law for that matter) on its

head, nor are we creating a new tort of "innovator liability"

as has been suggested. Instead, we are answering a question

of law involving a product that, unlike any other product on

the market, has unprecedented federal regulation. Nothing in

this opinion suggests that a plaintiff can sue Black & Decker

for injuries caused by a power tool manufactured by Skil based

on labeling or otherwise. The unique relationship between

brand-name and generic drugs as a result of federal law and

FDA regulations, combined with the learned-intermediary

doctrine and the fact that representations regarding

prescription drugs are made not to the plaintiff but to a

third party, create the sui generis context in which we find

prescription medication. Again, the fraud or

misrepresentation claim that may be brought under Alabama law

against a drug manufacturer based on statements it made in

connection with the manufacture of a brand-name prescription

drug by a plaintiff claiming physical injury caused by a

generic drug manufactured by a different company is premised

64
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upon liability not as a result of a defect in the product

itself but as a result of statements made by the brand-name

manufacturer that Congress, through the FDA, has mandated be

the same on the generic version of the brand-name drug.11

APPLICATION OVERRULED; OPINION OF JANUARY 11, 2013,

WITHDRAWN; OPINION SUBSTITUTED; QUESTION ANSWERED.

Stuart, Main, Wise, and Bryan, JJ., concur.

Shaw, J., concurs specially.

Moore, C.J., and Parker and Murdock, JJ., dissent.

11
It should also be noted that we are not deciding the
merits of the underlying case. It may be that a jury finds
that the warnings on the label were adequate or that it finds
that Danny's physician did not rely on the warnings on the
label authored by Wyeth when prescribing the generic version
of Reglan to Danny.
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SHAW, Justice (concurring specially).

I concur fully in the Court's answer to the certified

question. I write specially to note the following.

First, some preliminary observations:

1. The certified question is not posed within the
context of a defective-product case. See note 13,
infra. Our answer to the certified question in no
way holds that a manufacturer of a product may be
held liable, under general products-liability
jurisprudence, for a product manufactured by
another.

2. The certified question calls for an explanation
of, and our answer applies, current Alabama law. We
are not creating new law or doing something novel;
we are applying established law to a factual and
legal scenario that has never been addressed by this
Court. Concomitant with that, we discuss Alabama
law as it exists, not how some perceive it should
exist.

3. Given the nature of the federal government's
pervasive regulation of the prescription-drug
industry, our answer is extremely narrow in scope
and cannot conceivably apply outside that context.

4. No decision of any other jurisdiction addresses
the precise question of Alabama law discussed in our
answer.12

12
Certain federal district court decisions cited in this
Court's answer address the issue under the law that existed
before the Supreme Court's decision in PLIVA, Inc. v. Mensing,
564 U.S. ___, 131 S. Ct. 2567 (2011), and are thus
distinguishable. The numerous decisions from other
jurisdictions that rely on principles rejected by PLIVA are
similarly distinguishable.
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The certified question asks this Court to apply current

Alabama law as it relates to fraud.13 For purposes of

examining the purely legal issue presented in this certified

question, I believe that we must accept the factual

allegations of the plaintiffs, Danny Weeks and Vicki Weeks, as

true. Those allegations are summarized as follows: Wyeth

produced the brand-name drug Reglan, which is metoclopramide,

and, through its "labeling" of the drug, misrepresented or

failed to provide important facts to Danny Weeks's doctor

about how metoclopramide is to be taken properly.14

13
Given that the federal district court has decided that
the action is not an Alabama Extended Manufacturer's Liability
Doctrine ("AEMLD")/defective-product action, I decline to
accept the invitation of Wyeth to recharacterize the action
under the anti-circumvention rule stated in Pfizer, Inc. v.
Farsian, 682 So. 2d 405 (Ala. 1996), as one that is, in
substance, alleging a defective-product claim and not a fraud
claim. The application for rehearing takes this Court to task
for failing to address this issue. However, as this Court's
answer explains, citing Tillman v. R.J. Reynolds Tobacco Co.,
871 So. 2d 28, 34-35 (Ala. 2003), AEMLD claims and fraud
claims are different. As cast by the district court in the
question presented to us, this case presents a fraud action.
I express no opinion as to whether it should be
recharacterized. Thompson-Hayward Chemical Co. v. Childress,
169 So. 2d 305 (Ala. 1964), cited by Wyeth on rehearing,
involves a negligence action, not a fraud action, and thus is
inapplicable.
14
Danny's doctor wrote him a prescription for "Reglan" and
directed its use; Danny's pharmacy filled the prescription
with metoclopramide that was manufactured by someone other
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When Wyeth's ability to produce and sell metoclopramide

exclusively lapsed, generic-drug companies became able to

manufacture and sell metoclopramide. Those generic-drug

companies may have wished to give Danny's doctor different

facts or instructions about the use of metoclopramide, but,

for all intents and purposes relevant in this case, the

federal government will not allow them to do so. Essentially,

federal law requires that those generic-drug companies repeat

Wyeth's alleged misrepresentations or omissions. Wyeth knew

that the generic-drug companies are required to do this; Wyeth

knew that its instructions on the use of metoclopramide would

be repeated by the generic-drug companies. The federal

government has declared that generic-drug companies cannot be

sued if a doctor prescribes and a patient takes metoclopramide

manufactured by a generic-drug company in the manner in which

Wyeth represented that it should be taken. In other words,

the generic-drug companies must repeat Wyeth's purportedly

fraudulent conduct and cannot be sued for doing so if Wyeth's

misconduct ultimately harms the patient.

than Wyeth. It is the doctor's prescribed use of
metoclopramide, which we must assume was based on what Wyeth
told or failed to tell the doctor, that caused Danny's injury.
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In this context, we look to see whether, "[u]nder Alabama

law, [Wyeth may] be held liable for fraud or misrepresentation

(by mistatement or omission), based on statements it made"

about metoclopramide. As discussed below, Alabama law allows

a plaintiff to sue a defendant based on the defendant's

fraudulent conduct directed to a third person. A prior

relationship between the two parties is not necessary. Two

factors have been the focus of this case: foreseeability and

duty. Although a controlling issue in other jurisdictions, I

see no dispute as to foreseeability. As even Justice

Murdock's dissenting opinion agrees, it is "eminently"

foreseeable "that a generic version of a brand-name drug will

be consumed in reliance upon labeling disseminated by the

brand-name manufacturer for its brand-name drug."15 So.

3d at .

In cases where fraudulent conduct is directed to third

parties, this State's caselaw generally holds that a duty to

disclose may be owed to a person with whom the defendant has

15
Thus, the numerous decisions of other jurisdictions that
would hold that the injury that allegedly occurred in this
case was not foreseeable are distinguishable. I would be
hesitant to cite decisions rejecting foreseeability, as well
as decisions that predate PLIVA, as calling into question the
rationale of this Court's answer to the certified question.
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had no prior dealings, specifically, where there is a "duty"

not to make a false representation:

1. To those to whom a defendant intends, for his or
her own purposes, to reach and influence by the
representation;

2. to those to whom the defendant has a public duty
created by statute or pursuant to a statute; and

3. to those members of a group or class that the
defendant has special reason to expect to be
influenced by the representation.

Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 919-

20 (Ala. 1994),16 and Carter v. Chrysler Corp., 743 So. 2d 456,

461 (Ala. Civ. App. 1998); see also generally Potter v. First

Real Estate Co., 844 So. 2d 540, 553 (Ala. 2002), and Colonial

Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390, 396

(Ala. 1989).

In Hines, this Court held that an automobile manufacturer

had a duty to disclose to subsequent purchasers of an

automobile it had manufactured that the automobile had been

repainted, even though the manufacturer had no relationship

with the later purchasers, "[b]ecause the [subsequent

purchasers] were members of a group or class of persons who

16
Hines was overruled on other grounds by State Farm Fire
& Casualty Co. v. Owen, 729 So. 2d 834 (Ala. 1998). See note
10, supra.
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[the manufacturer] expected or had special reason to expect

would be influenced by its decision not to disclose

information ...." 655 So. 2d at 920. Thus, they "had a

sufficient relationship on which to base a duty to disclose."

Id. In Carter, an automobile manufacturer repurchased under

the Lemon Law an automobile that was allegedly defective.

This fact was disclosed to the party to whom the automobile

was next sold. The Court of Civil Appeals held, however, that

the Lemon Law created a duty to ensure that the fact that the

automobile had been repurchased was disclosed to those who

would later purchase the automobile from the second buyer,

even though the manufacturer had no relationship with those

later purchasers.

In both Carter and Hines there was a duty to not

misrepresent or omit facts to those with whom the automobile

manufacturers never had contact. Although those cases

involved products that were actually manufactured by the

defendants, the logic behind the creation of the duty has

nothing to do with that fact. Here, federal law has created

a scheme in which persons who purchased metoclopramide

manufactured by generic-drug companies would have to rely on

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Wyeth's representations about metoclopramide. Thus, Wyeth had

a "special reason to expect" that purchasers of the generic

metoclopramide "would be influenced" by its labeling

information because that information--owing to federal law--

would be the only information purchasers of both brand-name

and generic metoclopramide would receive. That the

metoclopramide was made by another manufacturer creates no

distinction: for purposes of this case, metoclopramide is the

same no matter who produced it. As required by federal law,

Wyeth's alleged misrepresentations or omissions concerning

metoclopramide also applied to metoclopramide manufactured by

a generic-drug company. What Wyeth allegedly said (or failed

to say) in its "labeling" about metoclopramide was intended to

"reach and influence" users (through doctors or other health

professionals) of metoclopramide, which, at that time, was

manufactured only by Wyeth. This labeling, as required by

federal law, also reached and influenced purchasers of generic

metoclopramide. This federal law gave Wyeth "special reason

to expect" that all users of metoclopramide would be

influenced by its labeling.

Our answer to this certified question on original

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submission has generated many responses, some of which

expressed valid concerns, while others either shamefully

misrepresented our holding or bordered on the hysterical. Our

answer, however, is extraordinarily narrow in scope. The

posture in which the certified question is asked (assuming a

fraud cause of action), the facts of this case, and the impact

of strict federal regulation on the prescription-drug industry

drastically confine our holding and wholly remove the facts of

this case from situations where parties are allegedly being

held liable under general products-liability theories for

products they did not make. I cannot see our answer to the

certified question as in any way speaking to the applicability

of Alabama law outside the narrow context created by federal

law in this case.

I must disagree with the implication that our answer is

based on a motivation other than stating current Alabama law.

Nothing in our answer suggests that this Court is trying to

"correct" a "wrong" "with a second 'wrong'" or to "correct"

"unfairness" created by the federal government. ___ So. 3d at

___ (Murdock, J., dissenting). Although the members of this

Court might respectfully disagree as to what Alabama tort law

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does or should require, our answer does nothing more than

apply established Alabama decisions (which have not been

challenged) to a difficult and unique factual and legal

scenario.

I also respectfully reject the implication that our

answer, applying as it does established Alabama tort law

providing a remedy for fraudulent conduct, might "create a

climate in which trade and business innovation" cannot

flourish or that it prevents "Americans [from] work[ing] hard

to produce innovative goods and services that have benefited

not only themselves, but also their children, their

communities, and America as a whole." ___ So. 3d at ___

(Murdock, J., dissenting). Allowing fraudulent or tortious

conduct in the marketplace to go unchecked--if that is what

has occurred in this case--would not seem to promote this

policy. The legal analysis set forth in this Court's answer,

in my view, creates no new law, enforces existing law, and

epitomizes the kind of judicial restraint that should be

expected of an appellate court.

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MOORE, Chief Justice (dissenting).

I respectfully dissent because I do not think that this

Court should accept a certified question when critical facts

are not before the Court.

I was not a member of this Court when the certified

question from the United States District Court for the Middle

District of Alabama was answered on original submission.

However, I note that Danny Weeks and Vicki Weeks, the

plaintiffs in the federal case, urged this Court at that time

to decline to answer. Weekses' brief on original submission

(hereinafter "Weekses' original brief"), at 8-13. One of the

grounds urged was that "the answer would not be determinative

of the cause, which is the purpose of certification." Id. at

13. I believe this suggestion points to the proper resolution

of this application for rehearing.

The Alabama rule that provides for answering certified

questions from the federal courts reads as follows:

"When it shall appear to a court of the United
States that there are involved in any proceeding
before it questions or propositions of law of this
State which are determinative of said cause and that
there are no clear controlling precedents in the
decisions of the Supreme Court of this State, such
federal court may certify such questions or
propositions of law of this State to the Supreme

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Court of Alabama for instructions concerning such
questions or propositions of state law, which
certified question the Supreme Court of this State,
by written opinion, may answer."

Rule 18(a), Ala. R. App. P. (emphasis added). This Court

consented to answer the certified question on October 17,

2011. However, that decision is subject to reconsideration.

See Palmore v. First Unum, 841 So. 2d 233 (Ala. 2002)

(declining to answer a certified question from a federal court

that had erroneously been accepted).

Rule 18(a) allows a federal court to certify to this

Court "questions or propositions of law of this State which

are determinative of said cause," namely the proceeding

pending before the federal court. In support of this

requirement, the certifying court stated that "'[t]he question

framed ... is "determinative" of this case in the sense that

a negative answer would require dismissal of the Weekses'

claims against the brand-named defendants ....'" ___ So. 3d at

___. The certifying court's statement omits any mention of

whether a positive answer would also be determinative of the

outcome of the case. If this Court's answer to the certified

question is "no," the Weekses' claims must be dismissed for

failure to state a claim. However, an answer of "yes," as

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proposed by the majority, will not be "determinative of said

cause." In that event, the Weekses may proceed with their

cause of action for misrepresentation, but the ultimate

success of their claims will depend upon facts not before us.

For example, if Danny Weeks's prescribing physician did not

rely on the Reglan labeling when prescribing the drug, then

the Weekses will have failed to prove causation and their

claims will fail. According to the Weekses, neither Danny's

prescribing physician nor his other medical providers have yet

been deposed. Weekses' original brief, at 3-4.

Additionally, as the Weekses stated in urging this Court

to decline to answer the certified question, both Wyeth, Inc.,

and Schwarz Pharma, Inc., two of the three brand-name

defendants,17 apparently no longer had an interest in the

Reglan brand at the time Danny Weeks's physician diagnosed him

with tardive dyskinesia in 2009.18 Wyeth sold its interest in

Reglan to Schwarz Pharma on December 27,2001, and ceased

manufacturing or selling Reglan after that date. Schwarz

17
Pfizer, Inc., the third brand-name defendant, is the
parent company of Wyeth. Brand-name defendants' brief on
original submission, at 3 n.2.
18
The Weekses allege that Danny first began ingesting
metoclopramide, the generic name for Reglan, in 2007.
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Pharma in turn sold its interest in Reglan to another company

in February 2008. Weekses' original brief, at 10-12. According

to the Weekses, Wyeth and Schwarz Pharma are both raising a

federal-preemption defense, arguing that, after selling their

interest in Reglan, they lost all ability to change Reglan's

labeling. See PLIVA, Inc. v. Mensing, 564 U.S. ___, 131 S. Ct.

2567 (2011) (holding that state-law claims of

misrepresentation in labeling were preempted by federal law

when the defendant had no control over labeling of the product

alleged to have injured the plaintiff).

Whether the federal-preemption defense will succeed is

unknown, but its presence in the case renders an answer of

"yes" to the certified question indeterminative of the cause.

As the Weekses have argued, the certified question "should not

be decided because it raises a federal question better

addressed by the federal court." Weekses' original brief, at

13. See Palmore, 841 So. 2d at 235 (declining to answer a

nondispositive certified question "lest our answer resemble an

opinion on an abstract point of law irrelevant to the

underlying case"). See also Stewart Title Guar. Co. v. Shelby

Realty Holdings, LLC, 83 So. 3d 469, 472 (Ala. 2011) (holding

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that the "determinative of said cause" requirement of Rule

18(a) prohibits the Court from answering a certified question

that "would necessitate our fashioning a broad rule with the

possibility that it would have no application to the

particular facts presented"); Harrison v. Jones, 880 F.2d

1279, 1283 n.4 (11th Cir. 1989) (refusing to certify a

question of law to the Alabama Supreme Court because the

question "would not be dispositive" and noting that under Rule

18(a) "questions certified must be determinative").

The problem of factual uncertainty is most likely to

occur, as in this case, in the context of a question certified

from a federal trial court. Because the question of law before

us was certified after the denial of the defendants' motion to

dismiss, factual development is still incomplete in the

federal case.

"[W]e think it will be incumbent upon us to respond
to questions only when it is apparent from the
certification itself that all material facts have
been either agreed upon or found by the court and
that the case is in such posture in all respects
that our decision as to the applicable [state] law
will in truth and in fact be 'determinative of the
cause' as the statute conferring jurisdiction upon
us requires."

In re Richards, 223 A.2d 827, 833 (Me. 1966) (construing Me.

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Rev. Stat. Ann., tit. 4, § 57). In this case, however, the

facts have yet to be determined. See Hanchey v. Steighner, 549

P.2d 1310, 1310-11 (Wyo. 1976) (finding that a certified

question from a federal trial court was "premature" when the

case was "merely in the pleading stage" and "[i]t does not

clearly appear that even if the question were answered, how

the answer would be determinative of the cause pending in the

federal court").

The United States Court of Appeals for the Fourth

Circuit, considering certifying a question of state law to the

Maryland Court of Appeals, addressed a situation somewhat like

the one currently before this Court. If the state court

answered "no" to the question, the case would be over, but if

it answered "yes," "further proceedings would still be

necessary in a federal tribunal and those proceedings might

result in an adjudication which would render the certification

and the opinion of the [state] court a futile, academic

exercise with respect to final disposition of this case."

Boyter v. Commissioner, 668 F.2d 1382, 1385 (4th Cir. 1981).

In those circumstances the Fourth Circuit declined to certify

the question of law for determination by the Maryland Court of

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Appeals "unless and until it appears that the answer is

dispositive of the federal litigation or is a necessary and

inescapable ruling in the course of the litigation." Id.

Similarly, in this case, we should decline to answer a

question that may likely not be determinative of the federal

case and thus fails to conform to the mandate of Rule 18 that

creates our jurisdiction to answer such questions.19

I also believe that imposing an industry-wide duty on

brand-name manufacturers through the procedural mechanism of

a certified question is unwise. I would far prefer to address

this issue, if necessary, on a complete record following a

final judgment in a state trial court that resolved all

factual questions.

For the reasons stated above, I believe that this Court's

acceptance of the certified question was in error and that we

19
Other states, following the language in the Uniform
Certification of Questions of Law Act (1967), permit
certification of questions of law that "may be determinative
of the cause then pending in the certifying court" or,
following the 1995 version of that Act, that "may be
determinative of an issue in pending litigation in the
certifying court." (Emphasis added.) These broader
formulations do not reflect the Alabama rule, which requires
the presence of "questions or propositions of law of this
State which are determinative of said cause." (Emphasis
added.)
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should decline to answer the certified question. Palmore.

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PARKER, Justice (dissenting).

Congressional legislation and regulations of the Food and

Drug Administration have created a maze this Court has to

navigate to determine the effect of federal preemption on the

bedrock legal principles of this State's jurisprudence. As

Justice Murdock so comprehensively demonstrated in his

dissenting opinion in this case, our legal principles of duty

based on privity, see e.g., State Farm Fire and Casualty Co.

v. Owen, 729 So. 2d 834 (Ala. 1998),20 have not been expressly

subsumed by the federal legislation and regulations in this

area in regard to a consumer of a generic drug vis-à-vis the

originator/manufacturer of the brand-name drug.

This Court's modification of its bedrock legal principles

in view of federal legislation and regulations in one area

could have grave and unforseen effects in other areas. To

guard against this, it is incumbent upon this Court to

scrutinize any claim of federal preemption to determine the

express wording of the limitations of such preemption.

20
"[T]he concept of duty does not exist in a vacuum. It
requires a relationship between two or more parties, a
relationship that can be shown only through a history of
contacts, conversations, and circumstances. Determining
whether there is a duty necessarily requires analyzing the
factual background of the case." 729 So. 2d at 839.
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Nothing in federal legislation or regulations at issue

here requires this Court to ignore, modify, or override our

bedrock legal principles of duty and privity with regard to

the originator of a pharmaceutical drug and a consumer who has

not consumed a drug manufactured by the originator of the

drug. PLIVA, Inc. v. Mensing, 564 U.S. ___, 131 S. Ct. 2567

(2011), and Mutual Pharmaceutical Co. v. Bartlett, ___ U.S.

___, 133 S. Ct. 2466 (2013), have made clear that such a

consumer is left without a remedy absent a legislative change

by Congress. The United States Supreme Court addressed this

implausible result when it stated:

"But 'it is not this Court's task to decide
whether the statutory scheme established by Congress
is unusual or even bizarre.' Cuomo v. Clearing House
Assn., L.L.C., 557 U.S. 519, ___ (2009) (THOMAS, J.,
concurring in part and dissenting in part) (internal
quotation marks and brackets omitted). It is beyond
dispute that the federal statutes and regulations
that apply to brand-name drug manufacturers are
meaningfully different than those that apply to
generic drug manufacturers. Indeed, it is the
special, and different, regulation of generic drugs
that allowed the generic drug market to expand,
bringing more drugs more quickly and cheaply to the
public. But different federal statutes and
regulations may, as here, lead to different
pre-emption results. We will not distort the
Supremacy Clause in order to create similar
pre-emption across a dissimilar statutory scheme. As
always, Congress and the [Food and Drug
Administration] retain the authority to change the

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law and regulations if they so desire."

PLIVA, 564 U.S. at ___, 131 S. Ct. at 2582.

Based on the foregoing, I respectfully dissent.

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MURDOCK, Justice (dissenting).

There is no good outcome in this case. In fairness to

the main opinion, this Court has been put in a position from

which it cannot give an answer that yields a just result for

both plaintiffs and defendants in cases such as this. My

understanding of certain bedrock principles of tort law and of

the economic realities underlying those principles, however,

compels me to dissent and to explain fully my concerns.

I.

A.

From the beginning, what Alexander Hamilton referred to

as "[t]he spirit of enterprise, which characterizes the

commercial part of America,"21 has animated Americans to work

hard to produce innovative goods and services that have

benefited not only themselves, but also their children, their

communities, and America as a whole. An enterprising spirit

alone, however, is not enough. The law must protect the

fruits of enterprise and create a climate in which trade and

business innovation can flourish. Concomitantly, the law must

justly allocate risks that are a function of that free trade

21
The Federalist No. 7, at 63 (Alexander Hamilton)
(Clinton Rossiter ed., 1961).
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and innovation.

These dual needs have resulted in an economic and legal

system that always has coupled the rewards from the sale of a

good or service with the costs of tortious injury resulting

from the same. Indeed, this and the corollary notion that

parties are responsible for their own products, not those of

others, are so organic to western economic and legal thought

that they rarely find need of expression.

The path the Court takes today is in conflict with these

notions. Impetus to take this path comes from a newfound and

admittedly legitimate concern left in the wake of the United

States Supreme Court's holding in PLIVA, Inc. v. Mensing, 564

U.S. ___, 131 S. Ct. 2567 (2011), that state-law tort claims

against manufacturers of generic drugs are preempted by

federal law. The resulting concern is that, if manufacturers

of brand-name drugs are not responsible under state law for

injuries caused by defects in generic drugs and their related

labeling, then no one will be.

To see our way clear to placing such responsibility upon

brand-name manufacturers, however, we must distance ourselves

from the foregoing notions. We must overlook a foundational

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element of tort law that these notions inform and in which

they find voice: the necessity of a "duty" arising from a

sufficient "relationship," or nexus, between the injured party

and the defendant. We must focus on the role of

"foreseeability" in the creation of a duty to the exclusion of

"relationship." In doing so, this Court creates a precedent

that poses danger for the prescription-medicine industry and,

by extension, for all industry.

B.

As discussed in Part II of this writing, almost every one

of the 47 reported cases decided before the United States

Supreme Court's decision in PLIVA, including cases decided by

two United States Circuit Courts of Appeals, held that a

manufacturer of a brand-name drug has no duty to the consumer

of a generic drug manufactured and sold by another company.

Since the Supreme Court's 2011 decision in PLIVA, every one of

the two dozen cases that have addressed the issue, including

decisions by six United States Circuit Courts of Appeals, has

reached this same conclusion.

As these numbers indicate, the Supreme Court's holding in

PLIVA –- that state-law claims against generic-drug

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manufacturers are preempted by the federal regulatory scheme

–- did nothing to undermine the essential rationale in the

plethora of pre- and post-PLIVA decisions holding that brand-

name manufacturers are not liable for injuries caused by

deficient labeling of generic drugs they neither manufactured

nor sold. In fact, as discussed below, the opinion in PLIVA

expressly says as much, and opinions in post-PLIVA cases are

even more explicit in saying so.

It does indeed appear unfair –- an "unfortunate hand" in

the words of the United States Supreme Court –- that a

consumer harmed by a generic drug cannot seek compensation

from the entity that manufactured and sold that drug. If this

is unfair, however, it is an unfairness created by Congress

and the Food and Drug Administration ("the FDA") in return for

the perceived societal benefit of less expensive generic

drugs, or perhaps instead by the manner in which the United

States Supreme Court subsequently has applied the preemption

doctrine to the legislative and regulatory scheme structured

by those entities. It is not an unfairness created by the

brand-name manufacturer. The just answer then, if there is to

be one, must come from a change of federal policy or

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preemption jurisprudence. It is not to come from ignoring

age-old, elemental precepts of tort law in order to impose

liability on an entity with whom the plaintiff has no

relationship, in regard to a product that that entity did not

manufacture or sell.

Having itself laid the blame for the present unfairness

at the feet of Congress and the FDA, the United States Supreme

Court concludes in PLIVA that this is not a problem for that

Court to correct. If this is so, then, a fortiori, it is not

a problem for this or any other state court to correct. And

it certainly is not a "wrong" that this or any court should

attempt to correct with a second "wrong."

II.

"The concept of duty does not exist in a vacuum." State

Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834, 839 (Ala. 1998).

It requires a sufficient "relationship," or nexus, between two

or more parties. Id. The duty this Court recognizes today is

one based solely on "foreseeability." Given the existing

federal regulatory scheme, I agree that it is "foreseeable" --

indeed, eminently so -- that a generic version of a brand-name

drug will be consumed in reliance upon labeling disseminated

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by the brand-name manufacturer for its brand-name drug. But

this foreseeability alone is not enough to create a duty.

There also must be a "relationship" or nexus between the

parties.

For example, it might be foreseeable that one

manufacturer would copy the design of an unpatented machine

of some nature, which, unbeknownst to that manufacturer, was

originally designed in a defective manner, and that a user of

the copied device might be injured as a result of a replicated

design defect. Nonetheless, the designer of the original

machine did not manufacture or sell the copied machine. The

law therefore recognizes the lack of any nexus between that

designer and the injured party in relation to the machine that

caused the injury and thus recognizes no duty on the part of

that designer to the injured party.

The same principle applies to claims of misrepresentation

and suppression. A viable claim depends upon the existence of

a duty on the part of the defendant to the plaintiff. See,

e.g., Nesbitt v. Frederick, 941 So. 2d 950, 955 (Ala. 2006)

("An essential element of fraudulent-misrepresentation and

fraudulent-suppression claims is a duty to disclose.").

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In Thompson-Hayward Chemical Co. v. Childress, 277 Ala.

285, 291-92, 169 So. 2d 305, 312 (1964), the Alabama Supreme

Court addressed a common-law claim alleging failure to warn of

the dangerous nature of a herbicide:

"The breach of duty charged against defendants
is the failure to give notice to or warn plaintiffs
of the dangerous nature of the vine killer. Do the
facts alleged in the complaint show that the
defendant, Bertolla, owed a duty to warn plaintiffs?
As plaintiffs candidly admit in brief, it is not
alleged that plaintiffs purchased the vine killer
from Bertolla. It is not alleged that Bertolla ever
had possession of or any connection whatsoever with
the particular substance which plaintiffs sprayed
and which allegedly caused the death of plaintiffs'
cattle. The rule, upon which plaintiffs' right to
recover is based, imposes the duty on one who, with
knowledge of its dangerous quality, manufactures or
sells an imminently dangerous article and fails to
warn. It is not alleged that Bertolla manufactured
the dangerous article. It is not alleged that
Bertolla sold it. How, then, did Bertolla owe a
duty to warn?"

(Emphasis added.)

In a case in which it was foreseeable to the owner of a

power pole that a defective power line hanging from its pole

could injure someone in the plaintiff's position, this Court

held that the lack of any relationship between the owner of

the power pole and the injured party meant that no duty to

warn of the danger existed:

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"In addition to foreseeability, Alabama courts look
to a number of factors to determine whether a duty
exists, including '"(1) the nature of the
defendant's activity; (2) the relationship between
the parties; and (3) the type of injury or harm
threatened."' Taylor [v. Smith], 892 So. 2d [887,]
892 [(Ala. 2004)] (quoting Morgan v. South Cent.
Bell Tel. Co., 466 So. 2d 107, 114 (Ala. 1985)).

"[The plaintiff] argues that 'once [Joe Wheeler
Electric Membership Corp.] had actual or
constructive knowledge of the deadly hazard, it had
a duty to require the removal of the hazard,' and
she asserts that 'notice or knowledge of a dangerous
condition can give rise to a duty of care.'
[Plaintiff's] brief at 29 (citing [Alabama Power Co.
v.] Cantrell, 507 So. 2d [1295,] 1297 [(Ala. 1986)]
('"'The duty of an electric company, in conveying a
current of high potential, to exercise commensurate
care under the circumstances, requires it to
insulate its wires, and to use reasonable care to
keep the same insulated wherever it may reasonably
be anticipated that persons, pursuing business or
pleasure, may come in contact therewith.'"' (quoting
[Alabama Power Co. v.] Brooks, 479 So. 2d [1169,]
1172 [(Ala. 1985)], quoting in turn Bush [v. Alabama
Power Co.], 457 So. 2d [350,] 353 [(Ala. 1984)]))).

"The holding of Cantrell is not as broad as [the
plaintiff] posits. Cantrell imposes a specific duty
on utilities to insulate their own lines, in
specific circumstances, whenever it is reasonably
anticipated that people may come into contact with
those lines. 507 So. 2d at 1297. Although the duty
imposed on the utility companies in Cantrell is
triggered when the utility company is aware that
individuals may come in contact with its lines,
Cantrell does not stand for the proposition that
notice of a dangerous condition alone is sufficient
to give rise to a duty of care. Further, none of
the other cases cited by DiBiasi support her
position. See ... Dominici v. Wal-Mart Stores,

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Inc., 606 So. 2d 555, 559 (La. Ct. App. 1992)
([stating that] ... '[a]ctual or constructive
knowledge of a risk or injury gives rise to a duty
to take reasonable steps to protect against
injurious consequences resulting from the risk,' but
noting that 'whether a legal duty is owed by one
party to another depends upon the facts and
circumstances of the case and the relationship of
the parties....') ...; cf. Alabama Dep't of Corr. v.
Thompson, 855 So. 2d 1016, 1021-22, 1025 (Ala. 2003)
(noting that '"'[i]t is the general rule in Alabama
that absent special relationships or circumstances,
a person has no duty to protect another from
criminal acts of a third party'"' (quoting Hail v.
Regency Terrace Owners Ass'n, 782 So. 2d 1271, 1274
(Ala. 1999), quoting in turn Moye v. A.G. Gaston
Motels, Inc., 499 So. 2d 1368, 1372 (Ala. 1986)),
and holding that 'state correctional officers owe a
general duty to the public, not a duty to a specific
person, to maintain custody of inmates').

"Although it may be true that foreseeability is
a key factor in determining whether a duty exists in
a particular circumstance, and knowledge of a
dangerous condition may establish foreseeability,
Alabama caselaw does not hold that knowledge, by
itself, is sufficient to impose a duty."

DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d 454,

461-62 (Ala. 2008) (emphasis added; footnote omitted). See

also, e.g., David G. Owen et al., Madden & Owen on Products

Liability § 2:9 (3d ed. 2000) ("As is true in tort law

generally, foreseeability, although necessary, is not in

itself a sufficient criterion for negligence in products

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liability cases.").22

Prescription-Drug Cases Decided Before PLIVA

In the leading case involving the question of liability

on the part of the manufacturer of a brand-name drug for harm

caused by deficient labeling of the generic version of the

drug, the United States Court of Appeals for the Fourth

Circuit recognized not only the necessity of a duty owed by

22
There has been criticism of the notion that
foreseeability should be understood as significant in
determining duty. Some courts and commentators have attempted
to explain that foreseeability that a given act will lead to
a given harm goes only to the issue whether that act is
unreasonable and thus falls short of the standard of care or
to the issue whether the harm can be considered to have been
proximately caused by the act. They view the existence vel
non of a duty as a threshold issue determined solely by the
relationship or nexus of the parties. See, e.g., Gipson v.
Kasey, 214 Ariz. 141, 144, 150 P.3d 228, 231 (2007)
("[F]oreseeability often determines whether a defendant acted
reasonably under the circumstances or proximately caused
injury to a particular plaintiff. ... Foreseeability, as
this Court noted in Martinez [v. Woodmar IV Condos. Homeowners
Ass'n, Inc., 189 Ariz. 206, 211, 941 P.2d 218, 223 (1997)], is
more properly applied to the factual determinations of breach
and causation than to the legal determination of duty."); W.
Jonathan Cardi, Purging Foreseeability, 58 Vand. L. Rev. 739
(April 2005).

It is not necessary here to grapple with this fundamental
question. It is enough for present purposes to recognize that
foreseeability alone is not enough to create a duty and that
a relationship between the parties is essential.

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the defendant to the plaintiff, but also that the source of

that duty must be a relationship created by the plaintiff's

consumption of the defendant's product. In Foster v. American

Home Products Corp., 29 F.3d 165, 167 (4th Cir. 1994), the

Court expressly held that "a name brand manufacturer cannot be

held liable on a negligent misrepresentation theory for

injuries resulting from use of another manufacturer's

product."

The plaintiffs attempt to discount Foster and other cases

that reach the same conclusion. According to the plaintiffs,

the opinions in those cases were based on the assumption that

generic manufacturers were available to bear the liability for

any deficiencies in the labeling that accompanies their

products. Such an assumption, they note, is no longer viable

in light of the Supreme Court's decision in PLIVA.

The issue of the generic manufacturer's liability,

however, was not the issue in Foster and the dozens of similar

cases decided before PLIVA. Although the courts in some of

those cases might have taken some comfort in the availability

of a generic manufacturer as a responsible party, the

conclusion reached by the Foster court and other courts as to

96
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the lack of liability on the part of brand-name manufacturers

for injuries caused by deficient labeling of generic drugs was

not dependent upon that availability. Thus, after expressing

in dicta its views as to the potential liability of generic

manufacturers, the Foster court proceeded to explain

separately as follows:

"We also reject the contention that a name brand
manufacturer's statements regarding its drug can
serve as the basis for liability for injuries caused
by another manufacturer's drug. Name brand
manufacturers undertake the expense of developing
pioneer drugs, performing the studies necessary to
obtain premarketing approval, and formulating
labeling information. Generic manufacturers avoid
these expenses by duplicating successful pioneer
drugs and their labels. Name brand advertising
benefits generic competitors because generics are
generally sold as substitutes for name brand drugs,
so the more a name brand drug is prescribed, the
more potential sales exist for its generic
equivalents. There is no legal precedent for using
a name brand manufacturer's statements about its own
product as a basis for liability for injuries caused
by other manufacturers' products, over whose
production the name brand manufacturer had no
control. This would be especially unfair when, as
here, the generic manufacturer reaps the benefits of
the name brand manufacturer's statements by copying
its labels and riding on the coattails of its
advertising. The premarketing approval scheme
Congress established for generic equivalents of
previously approved drugs cannot be construed to
create liability of a name brand manufacturer when
another manufacturer's drug has been consumed."

29 F.3d at 170 (emphasis added).

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Furthermore, in a separate portion of its opinion, the

court explains unequivocally, and without any reference to the

prospects for liability on the part of the generic

manufacturer, that a brand-name manufacturer simply has no

"duty" to the consumer of a generic drug the brand-name

manufacturer did not produce or distribute and that,

therefore, the brand-name manufacturer cannot be liable under

a negligent-misrepresentation theory:

"The Fosters' negligent misrepresentation action
against Wyeth also fails because Wyeth is under no
duty of care to the Fosters. ... An action for
negligent misrepresentation will not lie unless the
defendant owes the plaintiff a duty of care.
Weisman v. Connors, 312 Md. 428, [442-47,] 540 A.2d
783, 790-92 (1988)."

29 F.3d at 171. The court then expressly rejects the same

foreseeability argument urged upon us by the plaintiffs in

this case, explaining that foreseeability alone is not enough

to create a duty and that a relationship between the parties

is necessary:

"The Fosters contend that a duty exists in this
case because it was foreseeable to Wyeth that
misrepresentations regarding Phenergan could result
in personal injury to users of Phenergan's generic
equivalents. They point to Jacques v. First
National Bank, a negligence action, which noted:

"'Where the failure to exercise due care

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creates a risk of economic loss only,
courts have generally required an intimate
nexus between the parties as a condition to
the imposition of tort liability. This
intimate nexus is satisfied by contractual
privity or its equivalent. By contrast,
where the risk created is one of personal
injury, no such direct relationship need be
shown, and the principal determinant of
duty becomes foreseeability.'

"307 Md. 527, [534-35,] 515 A.2d 756, 759-60 (1986).
We think to impose a duty in the circumstances of
this case would be to stretch the concept of
foreseeability too far. The duty required for the
tort of negligent misrepresentation arises when
there is 'such a relation that one party has the
right to rely for information upon the other, and
the other giving the information owes a duty to give
it with care.' Weisman v. Connors, 312 Md. 428, 540
A.2d [783] at 790 [(1988)] (quoting Holt v. Kolker,
189 Md. 636, [640,] 57 A.2d 287, 288 (1948)). There
is no such relationship between the parties to this
case, as Brandy Foster was injured by a product that
Wyeth did not manufacture. As Wyeth has no duty to
the users of other manufacturers' products, a
negligent misrepresentation action cannot be
maintained against it on the facts of this case."

29 F.3d at 171 (emphasis added).

By my count,23 from the time Foster was decided until the

issuance of the Supreme Court's decision in PLIVA, 43 reported

cases applying the law of 18 states were decided in accordance

23
My count might be low. An appendix to the appellants'
application for rehearing lists more cases.
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with the Foster decision.24 Aside from the

24
The following pre-PLIVA cases involve the same drug at
issue in this case; many of them involve one or both of the
same corporate defendants. In all of them, the court holds
that the defendant brand-name manufacturer has no duty or
liability with respect to generic metoclopramide not
manufactured or sold by it: Mensing v. Wyeth, Inc., 588 F.3d
603, 612-14 (8th Cir. 2009), rev'd in part on other grounds
sub nom. PLIVA, Inc. v. Mensing, 564 U.S. ___ ,131 S. Ct. 2567
(2011); Bell v. Pfizer Inc., No. 5:10CV00101 BSM (E.D. Ark.
Mar. 16, 2011) (not reported in F. Supp. 2d); Overton v.
Wyeth, Inc., No. CA 10-0491-KD-C (S.D. Ala. Mar. 15, 2011)
(not reported in F. Supp. 2d), findings and recommendation
adopted (S.D. Ala. Apr. 7, 2011) (not reported in F. Supp.
2d); Simpson v. Wyeth, Inc., No. 7:10-cv-01771-HGD (N.D. Ala.
Dec. 9, 2010) (not reported in F. Supp. 2d), report and
recommendation adopted (N.D. Ala. Jan. 4, 2011) (not reported
in F. Supp. 2d); Gross v. Pfizer, Inc., No. 10-CV-00110-AW (D.
Md. Nov. 9, 2010) (not reported in F. Supp. 2d); Cooper v.
Wyeth, Inc., No. 09-CV-929 (M.D. La. Oct. 26, 2010) (not
reported in F. Supp. 2d); Fullington v. Pfizer, Inc., No.
4:10CV00236 JLH (E.D. Ark. Sept. 17, 2010) (not reported in F.
Supp. 2d); Johnson v. Teva Pharm. USA, Inc., No. 2:10 CV 404
(W.D. La. Aug. 16, 2010) (not reported in F. Supp. 2d); Fisher
v. Pelstring, No. 4:09-cv-00252-TLW (D.S.C. July 28, 2010)
(not reported in F. Supp. 2d); Neal v. Teva Pharm. USA, Inc.,
No. 09-CV-1027 (W.D. Ark. July 1, 2010) (not reported in F.
Supp. 2d); Mosley v. Wyeth, Inc., 719 F. Supp. 2d 1340 (S.D.
Ala. 2010); Phelps v. Wyeth, Inc., No. 09-6168-TC (D. Or. May
28, 2010) (not reported in F. Supp. 2d), findings and
recommendation adopted (D. Or. June 21, 2010) (not reported in
F. Supp. 2d); Craig v. Pfizer, Inc., No. 3:10-00227 (W.D. La.
May 26, 2010) (not reported in F. Supp. 2d); Finnicum v.
Wyeth, Inc., 708 F. Supp. 2d 616, 619-21 (E.D. Tex. 2010);
Howe v. Wyeth Inc., No. 8:09-CV-610-T-17 AEP (M.D. Fla. Apr.
26, 2010) (not reported in F. Supp. 2d); Hardy v. Wyeth, Inc.,
No. 9:09CV152 (E.D. Tex. Mar. 8, 2010) (not reported in F.
Supp. 2d), report and recommendation adopted (E.D. Tex.
Mar. 29, 2010) (not reported in F. Supp. 2d); Couick v. Wyeth,
Inc., 691 F. Supp. 2d 643, 645-46 (W.D. N.C. 2010); Levine v.
Wyeth Inc., 684 F. Supp. 2d 1338, 1344-48 (M.D. Fla. 2010);
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Washington v. Wyeth, Inc., No. 3:09-CV-01343 (W.D. La. Feb. 8,
2010) (not reported in F. Supp. 2d); Morris v. Wyeth, Inc.,
No. 09-0854 (W.D. La. Nov. 23, 2009) (not reported in F. Supp.
2d); Meade v. Parsley, No. 2:09-cv-00388 (S.D. W. Va. Nov. 13,
2009) (not reported in F. Supp. 2d); Burke v. Wyeth, Inc., No.
G-09-82 (S.D. Tex. Oct. 29, 2009) (not reported in F. Supp.
2d); Stoddard v. Wyeth, Inc., 630 F. Supp. 2d 631, 633-34
(E.D.N.C. 2009); Fields v. Wyeth, Inc., 613 F. Supp. 2d 1056,
1060-61 (W.D. Ark. 2009); Moretti v. Wyeth, Inc., No. 2:08-cv-
00396-JCM-(GWF) (D. Nev. Mar. 20, 2009) (not reported in F.
Supp. 2d); Schrock v. Wyeth, Inc., 601 F. Supp. 2d 1262,
1266-67 (W.D. Okla. 2009); Cousins v. Wyeth Pharm., Inc., No.
3:08-CV-0310-N (N.D. Tex. Mar. 10, 2009) (not reported in F.
Supp. 2d); Smith v. Wyeth, Inc., No. 5:07-CV-18-R (W.D. Ky.
June 30, 2008) (not reported in F. Supp. 2d), aff'd, 657 F.3d
420 (6th Cir. 2011); Wilson v. Wyeth, Inc., No. 3:07-CV-378-R
(W.D. Ky. June 30, 2008) (not reported in F. Supp. 2d), aff'd,
657 F.3d 420 (6th Cir. 2011); Morris v. Wyeth, Inc., No. 1:07-
CV-176-R (W.D. Ky. June 30, 2008) (not reported in F. Supp.
2d), aff'd, 657 F.3d 420 (6th Cir. 2011); Pustejovsky v.
Wyeth, Inc., No. 4:07-CV-103-Y (N.D. Tex. Apr. 3, 2008) (not
reported in F. Supp. 2d); Swicegood v. PLIVA, Inc., 543 F.
Supp. 2d 1351, 1358 (N.D. Ga. 2008); Tarver v. Wyeth, Inc.,
No. Civ.A.3-04-2036 (W.D. La. Jan. 26, 2006) (not reported in
F. Supp. 2d); Tarver v. Wyeth, Inc., No. Civ.A.3-04-2036 (W.D.
La. June 7, 2005) (not reported in F. Supp. 2d); Block v.
Wyeth, Inc., No. Civ.A. 3:02-CV-1077 (N.D. Tex. Jan. 28, 2003)
(not reported in F. Supp. 2d); and Sharp v. Leichus, 952 So.
2d 555 (Fla. Dist. Ct. App. 2007).

In addition to Foster, the other pre-PLIVA cases holding
that a manufacturer of a brand-name drug has no duty or
liability to the consumer of a generic drug manufactured and
sold by another company include Barnhill v. Teva
Pharmaceuticals USA, Inc., No. 06-0282-CB-M (S.D. Ala. Apr.
24, 2007) (not reported in F. Supp. 2d); Leblanc v. Wyeth,
Inc., No. CIV A 04-0611 (W.D. La. Oct. 5, 2006) (not reported
in F. Supp. 2d); Goldych v. Eli Lilly & Co., No. 5:04-CV-1477
(GLS/GJD) (N.D. N.Y. July 19, 2006) (not reported in F. Supp.
2d); Colacicco v. Apotex, Inc., 432 F. Supp. 2d 514, 540-41
(E.D. Pa. 2006), rev'd on other grounds, 521 F.3d 253 (3d Cir.
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decision of the court certifying the question in this case,

only two courts held to the contrary –- an intermediate state

appeals court in California and a district court in Vermont.25

The United States Court of Appeals for the Eighth Circuit

is the court from which the PLIVA case came and to which it

was returned on remand by the United States Supreme Court.

See Mensing v. Wyeth, Inc., 588 F.3d 603, 612-14 (8th Cir.

2009), rev'd in part on other grounds sub nom., PLIVA, Inc. v.

Mensing, 564 U.S. ___, 131 S. Ct. 2567 (2011). Before the

Supreme Court weighed in, the Eighth Circuit Court of Appeals

held that state-law claims against generic-drug manufacturers

2008), vacated and remanded, 129 S. Ct. 1578 (2009); Possa v.
Eli Lilly & Co., No. 05-1307-JJB-SCR (M.D. La. May 10, 2006)
(not reported in F. Supp. 2d); Stanley v. Wyeth, Inc., 991 So.
2d 31, 34-35 (La. Ct. App. 2008); and Flynn v. American Home
Products Corp., 627 N.W.2d 342, 350 (Minn. Ct. App. 2001).

In addition, according to briefs filed in this case, two
Alabama circuit courts also have addressed the issue of
liability for injuries allegedly caused by generic
metoclopramide, both concluding that the brand-name
manufacturer was not liable for injury caused by the generic
drug manufactured and sold by another company. See Buchanan
v. Wyeth Pharm., Inc., No. CV-2007-900065, Oct. 20 2008; Green
v. Wyeth, Inc., No. CV-2006-3917, May 14, 2007.
25
See Weeks v. Wyeth, No. 1:10-cv-602-MEF (M.D. Ala.
Mar. 31, 2011) (not reported in F. Supp. 2d); Conte v. Wyeth,
Inc., 168 Cal. App. 4th 89, 85 Cal. Rptr. 3d 299, 315–18
(2008); and Kellogg v. Wyeth, 762 F. Supp. 2d 694 (D. Vt.
2010).
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were not preempted by federal law. 588 F.3d at 611. In the

same opinion, however, that court was called upon to decide

whether a brand-name manufacturer could be held liable for

injuries caused by generic metoclopramide manufactured and

sold by another party. In a soundly reasoned opinion, that

court answered in the negative:

"[R]egardless of whether her doctor relied upon the
Reglan label, Mensing must show that the name brand
manufacturers owed her a duty of care. Duty is a
threshold requirement for all of the tort claims
Mensing asserts. See, e.g., Noble Systems Corp. v.
Alorica Central, LLC, 543 F.3d 978, 985 (8th Cir.
2008) (finding that under Minnesota law negligent
misrepresentation requires the plaintiff to 'prove
some relationship that is sufficient to create a
duty owed by the defendant to the plaintiff').

"Such a duty of care does not extend to all
potential Reglan consumers. 'Minnesota common law
... requires a stronger relationship and a direct
communication.' Flynn [v. American Home Prods.
Corp.], 627 N.W.2d [342,] 350 [(Minn. Ct. App.
2001)]. Since Mensing 'did not purchase or use [the
name brand defendants'] product, ... there was no
direct relationship between them, let alone a
fiduciary relationship that gave rise to a duty.'
Id. at 350. Mensing focuses on the foreseeability
of harm from the defendants' action. Like the
Fourth Circuit, we conclude that holding name brand
manufacturers liable for harm caused by generic
manufacturers 'stretch[es] the concept of
foreseeability too far.' Foster, 29 F.3d at 171."

588 F.3d at 613-14 (some emphasis added; footnote omitted).

In a footnote, the Eighth Circuit also provided this

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instructive insight:

"Mensing's attempt to characterize her fraud claim
as a type requiring no proof of a duty of care is
unavailing. A plaintiff claiming fraud in Minnesota
must show that the defendant intended to induce
another to act in reliance on its fraudulent
statement. Specialized Tours, Inc. v. Hagen, 392
N.W.2d 520, 532 (Minn. 1986). Mensing's
relationship with the Reglan manufacturers is too
attenuated, and she has cited no Minnesota case in
which the court imposed liability for fraud on a
defendant who did not intend to communicate with the
plaintiff. The Reglan manufacturers intended to
communicate with their customers, not the customers
of their competitors."

588 F.3d at 613 n. 9 (emphasis added).

Among the other pre-PLIVA decisions are four decisions

from federal district courts in Alabama applying Alabama law:

Mosley v. Wyeth, Inc., 719 F. Supp. 2d 1340 (S.D. Ala. 2010);

Simpson v. Wyeth, Inc., No. 7:10-CV-01771-HGD (N.D. Ala.

Dec. 9, 2010) (not reported in F. Supp. 2d); Overton v. Wyeth,

Inc., No. CA 10-0491-KD-C (S.D. Ala. Mar. 15, 2011) (not

reported in F. Supp. 2d); and Barnhill v. Teva Pharm. USA,

Inc., No. 06-0282-CB-M (S.D. Ala. 2007) (not reported in F.

Supp. 2d). In all four of these cases, the court held that

claims could not be maintained under Alabama law against the

manufacturer of a brand-name drug for injuries resulting from

a consumer's use of a generic version of that drug

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manufactured and sold by another company. The first of these,

Mosley, is representative of the other Alabama federal

district court decisions, as well as the other district court

decisions identified above. As the federal district court in

Mosley explained regarding precisely the same drug, the same

defendants, and the same legal issue as are presented in the

case at hand:

"The argument is not that Defendants' product caused
Plaintiff harm, but rather that their dissemination
of false and misleading information, which they knew
would be relied upon by the generic manufacturers in
generating their own labels, was the direct and
proximate cause of Plaintiff's injuries."

719 F. Supp. 2d at 1344-45. The court rejected this argument

because, under Alabama law, no "relationship" existed between

the manufacturer of the brand-name drug and the consumer of

the generic drug, and thus no "duty" was owed. 719 F. Supp.

2d at 1346-47.

Contrary to the main opinion, but consistent with all the

foregoing authority, Wyeth's argument does not "ignore[] the

nature of prescription medication." ___ So. 3d at ___.

Obviously, a duty must be understood to run from a drug

manufacturer to a consumer if that consumer is to be able to

state a claim against the manufacturer. (If the duty ran only

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to an intermediary or other third party, such as a physician

or pharmacist, then only the intermediary or third party would

have a cause of action and be a proper plaintiff.) The

controlled nature of prescription drugs, see 21 U.S.C

§ 353(b)(1), simply means that the drug manufacturer fulfills

its duty of disclosure to the consumer by making disclosures

to the consumer's physician and/or pharmacist, who receives

the disclosures and acts upon them on behalf of the consumer.

In essence, the consumer's physician serves as the agent of

the consumer for purposes of receipt of and reliance upon the

disclosures, or omissions, of the manufacturer. See, e.g.,

Stone v. Smith, Kline & French Labs., 447 So. 2d 1301, 1305

(Ala. 1984)(quoting Reyes v. Wyeth Labs., 498 F.2d 1264, 1276

(5th Cir. 1974)):

"'As a medical expert, the prescribing physician can
take into account the propensities of the drug as
well as the susceptibilities of his patient. His is
the task of weighing the benefits of any medication
against its potential dangers. The choice he makes
is an informed one, an individualized medical
judgment bottomed on a knowledge of both patient and
palliative. Pharmaceutical companies then, who must
warn ultimate purchasers of dangers inherent in
patent drugs sold over the counter, in selling
prescription drugs are required to warn only the
prescribing physician, who acts as a "learned
intermediary" between manufacturer and consumer.'"

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(Emphasis added.)26

Wyeth's position fully accommodates the notion that a

prescription drug is consumed only if it is prescribed by a

physician and dispensed by a pharmacist, and that the

physician and pharmacist act as agents of the consumer of a

generic drug for purposes of receiving and acting upon

whatever warnings and representations the drug's manufacturer

intends for that consumer. The fact that there is such a

"learned intermediary" acting in this manner on behalf of the

26
See also, e.g., Tetuan v. A.H. Robins Co., 241 Kan. 441,
464, 738 P.2d 1210, 1228 (1987) ("[W]here a patient relies on
a physician for treatment or advice ..., justifiable reliance
by the physician on misrepresentations or concealment by the
manufacturer of [a] device constitutes justifiable reliance by
the patient."); Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th
Cir. 1974) ("Pharmaceutical companies then, who must warn
ultimate purchasers of dangers inherent in patent drugs sold
over the counter, in selling prescription drugs are required
to warn only the prescribing physician, who acts as a 'learned
intermediary' between manufacturer and consumer."); and
Lovejoy v. AT&T Corp., 92 Cal. App. 4th 85, 95, 111 Cal. Rptr.
2d 711, 718 (2001) ("Under the principle of indirect reliance,
a fraudulent misrepresentation is actionable if it was
communicated to an agent of the plaintiff and was acted upon
by the agent to the plaintiff's damage. A classic example of
indirect reliance would be a drug manufacturer's
misrepresentation to physicians about the safety of its drug.
A patient injured by the drug is permitted to sue the
manufacturer for fraud without proof that his doctor repeated
the falsehood to him, under the theory that the doctor was
acting as plaintiff's agent.").

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ultimate consumer does not in itself create a relationship

between the brand-name manufacturer and the consumer.

Regardless of the fact of, or content of, a given

prescription, if a person consumes a generic drug, the nexus

created is with the manufacturer of the generic drug. The

physician's involvement does nothing to create some sort of

relationship between the consumer and some different entity.

The consumer has no more relationship with the brand-name

manufacturer in such a scenario than he or she would have if

the learned intermediaries were not involved and the consumer

purchased the generic drug directly from the generic

manufacturer.

As the Eighth Circuit Court of Appeals indicated in

Mensing, perhaps there is confusion resulting from the fact

that, in prescribing or dispensing a generic drug, physicians

or pharmacists might in fact rely upon labeling that

previously was published by a brand-name manufacturer in

conjunction with the marketing by it of its own brand-name

drug. As that court also pointed out, however, the labeling

of the brand-name manufacturer is not intended for that

purpose; it is published by the brand-name manufacturer solely

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for the purpose of fulfilling the brand-name manufacturer's

own duty to provide adequate labeling to the consumers of its

product. To say that a physician's or pharmacist's reliance

upon a brand-name manufacturer's labeling in prescribing or

dispensing a generic drug makes the brand-name manufacturer

liable for injuries suffered by the generic-drug consumer is

to "bootstrap" into existence a duty on the part of the brand-

name manufacturer to that consumer; the first inquiry must be

whether the brand-name manufacturer had a duty to one who did

not consume its product to publish adequate labeling. Apart

from such bootstrapping, there is no basis to declare the

existence of such a duty. See, e.g., Mensing, 588 F.3d at 613

("Regardless of whether her doctor relied upon the Reglan

label, Mensing must show that the name brand manufacturers

owed her a duty of care.").27

27
Of course, the corollary of this fact is that the
generic manufacturer does have a duty to the consumer of its
generic drug to publish a label upon which that consumer,
through his or her physician or pharmacist, can rely. It does
not change the lack of a duty by the brand-name manufacturer
as to the manufacturer of the generic drug to say that the
generic manufacturer must replicate for use with its own drug
the wording of the dosing instructions and warnings approved
by the FDA for use by the brand-name manufacturer. That fact,
and whatever effect it may or may not have upon the generic
manufacturer's liability to its consumer, is a matter between
the generic manufacturer and the consumer, with "input" from
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The present case is not distinguishable from the above-

discussed cases on the ground that the present case involves

common-law claims of fraud in relation to deficient labeling.

Foster, the Eighth Circuit Court of Appeals' Mensing case,

Alabama federal district court decisions such as Mosley, and

dozens of other well considered decisions cited above involve

alleged defects in labeling. Indeed, many, if not most, of

them involve common-law claims of misrepresentation of some

sort. They consider, and often explain, the necessity of a

duty arising from a relationship as no less applicable to

claims of defects in the warnings that accompany a product

than to defects in the pharmacology of the product.28

Congress, the FDA, and the United States Supreme Court. The
brand-name manufacturer plays no role in the generic
manufacturer's decision to enter the market, and it is not
responsible for crafting the regulatory and legal framework
within which the generic manufacturer chooses to do so.

28
These cases take this approach because pharmacological
defects and defective warnings are indistinguishable for
purposes of considering liability associated with the
consumption of a drug. As the United States Supreme Court
recently explained in a non-drug case:

"According to petitioners, these claims do not fall
within the [Locomotive Inspection Act's] pre-empted
field because '[t]he basis of liability for failure
to warn ... is not the "design" or "manufacture" of
a product,' but is instead 'the failure to provide
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adequate warnings regarding the product's risks.'
...

"We disagree. A failure-to-warn claim alleges
that the product itself is unlawfully dangerous
unless accompanied by sufficient warnings or
instructions. Restatement (Third) of Torts:
Products Liability § 2(c) (1997) (A failure-to-warn
claim alleges that a product is defective 'when the
foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of
reasonable instructions or warnings by the seller or
other distributor, ... and the omission of the
instructions or warnings renders the product not
reasonably safe'); see also id., Comment l, at 33
('Reasonable designs and instructions or warnings
both play important roles in the production and
distribution of reasonably safe products')."

Kurns v. Railroad Friction Prods. Corp., ___ U.S. ___, ___,
132 S. Ct. 1261, 1268 (2012) (emphasis added).

The indistinguishability of labeling and product is even
clearer -- and more tangible -- in the case of prescription
drugs. Prescription drugs are approved for sale by the FDA as
safe and effective only for use as recommended in the approved
labeling. As an amicus brief in another case recently
explained:

"Attempts to selectively untether the design of
a prescription drug from its labeling by allowing a
claim that 'the drug's risks outweighed its
benefits' making it unreasonably dangerous ignore
one very salient fact: The FDA-approved 'benefit'
is derived only by reference to the approved
indications in the product labeling, and the source
of the 'risks' to which the benefits are compared
also is the FDA-approved labeling. In other words,
a pharmaceutical product cannot be divorced from its
label as it is not possible to conduct a
risk/benefit (i.e., design defect) evaluation
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PLIVA

On June 23, 2011, the United States Supreme Court decided

PLIVA. The Court held that state tort-law claims against

manufacturers of generic drugs were preempted by the statutory

and regulatory scheme that had been adopted by Congress and

the FDA. 564 U.S. at ___, 131 S. Ct. at 2581-82. It is clear

from the text of the PLIVA opinion itself that PLIVA did not

without the product labeling."

Brief of the Generic Pharmaceutical Association as amicus
curiae in support of the petitioner in Mutual Pharm. Co. v.
Bartlett, No. 12-142, Jan. 22, 2013, p. 16 (appellate brief
to United States Supreme Court 2013) (emphasis added). See
also note 31, infra. Indeed, the United States Supreme Court
in PLIVA itself treated the label and warnings that
accompanied the drug as an integral part of the drug itself.
Adequate warnings, or lack thereof, are an inseparable part of
the product purchased and consumed by the plaintiff. (No one,
for example, would contend that Tylenol brand acetaminophen
sold to consumers as a pain remedy, but without any labels
prescribing dosages or warning of the harmful side effects of
taking more than the prescribed dosage would amount to the
same product as Tylenol sold with a label prescribing a dosage
of only two tablets every six hours and warning of harmful
side effects if that dosage is exceeded.)

Even this Court has had occasion to express its
understanding that the dosing instructions and the warnings of
contraindications and side effects set out in a drug's label
make the drug what it is. In Stone v. Smith, Kline & French
Lab., 447 So. 2d 1301, 1304 (Ala. 1984), this Court analyzed
a "failure to warn" as an aspect of products-liability law,
and explained that "the adequacy of the accompanying warning
determines whether the drug, as marketed, is defective, or
reasonably dangerous."
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undermine the rationale of the dozens of pre-PLIVA decisions

discussed and cited above.

Foremost in this regard is the simple fact that the issue

discussed in PLIVA was the effect of the federal law of

preemption on the liability of generic manufacturers for their

own drugs. Nothing in the Court's reasoning as to this issue

has any bearing on the unrelated question under state law of

relationship and duty of brand-name manufacturers with respect

to drugs they do not manufacture.

Second, the PLIVA Court includes statements in the

opinion that contemplate that its ruling as to generic

manufacturers does not mean that consumers injured by generic

drugs will now be able to turn to manufacturers of brand-name

drugs for compensation. The Supreme Court expressly

recognizes the "unfortunate hand" that has been dealt to

consumers of generic drugs given its decision:

"We acknowledge the unfortunate hand that federal
drug regulation has dealt Mensing, Demahy, and
others similarly situated.

"But 'it is not this Court's task to decide
whether the statutory scheme established by Congress
is unusual or even bizarre.' Cuomo v. Clearing House
Assn., L.L.C., 557 U.S. 519, 556 (2009) (THOMAS, J.,
concurring in part and dissenting in part) (internal
quotation marks and brackets omitted)."

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564 U.S. at ___, 131 S. Ct. at 2581-82. As Justice Sotomayor

subsequently explained, under the majority decision, a

consumer of a generic drug "now has no right to sue." 564

U.S. at ___, 131 S. Ct. at 2592 (Sotomayor, J., dissenting).

Moreover, the Supreme Court expressed its understanding

that the consumption of the brand-name manufacturer's drug

remained a prerequisite to holding that manufacturer liable

for a labeling deficiency: "Had Mensing and Demahy taken

Reglan, the brand-name drug ..., Wyeth [v. Levine, 555 U.S.

555 (2009),29] would control and their lawsuits would not be

pre-empted." 564 U.S. at ___, 131 S. Ct. at 2581.

Cases Decided in the Wake of PLIVA

In the year and a half after PLIVA was decided, but

before this Court issued its opinion on original submission in

this case, 11 decisions applying the law of 10 states were

reported. Every one of those decisions held that

manufacturers of brand-name drugs had no duty or liability to

the consumer of a generic drug manufactured and sold by

29
In Wyeth v. Levine, 555 U.S. 555 (2009), the Supreme
Court held that lawsuits against brand-name manufacturers of
prescription drugs were not preempted by federal law.
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another company.30 Accordingly, there was (and, as will be

seen, still is) unanimity among the courts that addressed the

question in the wake of PLIVA that the holding of PLIVA as to

the preemption of state-law claims against generic

manufacturers does not undermine the rationale of the pre-

PLIVA decisions discussed above or justify making brand-name

manufacturers liable for a product they have not manufactured

or sold. This includes each of the three United States Courts

of Appeals to address the issue in the first year and a half

following PLIVA –- the Courts of Appeals for the Fifth, Sixth,

and Eighth Circuits.

30
See Demahy v. Schwarz Pharma, Inc., 702 F.3d 177 (5th
Cir. 2012); Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir.
2011); Mensing v. Wyeth, Inc., 658 F.3d 867 (8th Cir. 2011);
Baymiller v. Ranbaxy Pharm., Inc., 894 F. Supp. 2d 1302 (D.
Nev. 2012); Strayhorn v. Wyeth Pharm., Inc., 882 F. Supp. 2d
1020 (W.D. Tenn. 2012); Phelps v. Wyeth, Inc., 857 F. Supp. 2d
1114 (D. Or. 2012); Metz v. Wyeth LLC, 830 F. Supp. 2d 1291
(M.D. Fla. 2011); Lashley v. Pfizer, Inc., 877 F. Supp. 2d 466
(S.D. Miss. 2012); Guarino v. Wyeth LLC, No. 8:10-cv-2885-T-
30GTW (M.D. Fla. Apr. 3, 2012) (not reported in F. Supp. 2d);
Gross v. Pfizer, Inc., No. 10-CV-00110-AW (D. Md. Sep. 7,
2011) (not reported in F. Supp. 2d); and Fullington v. PLIVA,
Inc., No. 4:10CV00236JLH (E.D. Ark. Dec. 12, 2011) (not
reported in F. Supp. 2d). Some of these are cases in which a
court that addressed the issue before PLIVA had an opportunity
after PLIVA to revisit its previous ruling, only to reaffirm
that previous ruling and implicitly or explicitly conclude
that the Supreme Court's holding in PLIVA did not alter the
court's pre-PLIVA analysis.
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Perhaps the most noteworthy of the aforesaid three Court

of Appeals' decisions was the short order issued on remand by

the Eighth Circuit Court of Appeals in the PLIVA case itself.

The same court whose judgment had just been reversed by the

United States Supreme Court on the issue of preemption as to

the liability of generic manufacturers evidently felt no

compunction in deciding expressly to "reinstate Section III of

[its original] opinion," the same section quoted at length

above in which it had held that brand-name manufacturers were

not liable for defects or deficiencies in the labeling of

products manufactured and sold by others. Mensing v. Wyeth,

Inc., 658 F.3d 867 (8th Cir. 2011).

In Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011),

the United States Court of Appeals for the Sixth Circuit also

acknowledged, but was unaffected by, the holding in PLIVA.

The court began by noting the applicability of the Kentucky

Products Liability Act, which, it explained, was merely a

codification of preexisting common-law principles, including

common-law principles regarding the misrepresentation and

"failure-to-warn" claims asserted against the manufacturers of

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brand-name drugs in that case. 657 F.3d at 423.31 The court

then proceeded, undeterred in any way by the PLIVA holding as

to manufacturers of generic drugs, to explain its rejection of

the misrepresentation claims against the brand-name

manufacturer, Wyeth, as to the same drug that is at issue

here:

"A threshold requirement of any products-

31
The court explained that the term "products liability
action" was simply a reference to "'any action brought for or
on account of personal injury, death or property damage caused
by or resulting from the manufacture, construction, design,
formulation ... warning, instructing, marketing, advertising,
packaging or labeling of any product.'" 657 F.3d at 423
(quoting Ky. Rev. Stat. § 411.300(1) (2010)).

Cases from jurisdictions decided under a legislatively,
or in some cases judicially, crafted "products liability
doctrine" that has supplanted or supplemented traditional
common-law theories of recovery are entirely apposite to the
question at hand. Such doctrines, as in Kentucky, invariably
reflect common-law theories of recovery, including
misrepresentation and suppression relating to labeling and
warnings, and, like the common-law claims alleged here, also
require the existence of a duty arising out of a sufficient
nexus between the manufacturer and consumer in relation to the
product consumed.

For the same reason, it is not necessary to address the
issue whether the claims made by the plaintiffs in this case
should be considered Alabama Extended Manufacturer's Liability
Doctrine claims or may be considered conventional products-
liability claims based on common-law theories of fraud and
suppression. A duty arising from a relationship or nexus
between the parties would be necessary in either case; none
exists here.
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liability claim is that the plaintiff assert that
the defendant's product caused the plaintiff's
injury. See Holbrook v. Rose, 458 S.W.2d 155, 157
(Ky. 1970). The plaintiffs in this case concede
that they had consumed only generic versions of
metoclopramide and not Reglan. As the district
court observed, adopting their theory of liability
would require the court to attribute any deficiency
in a name-brand manufacturer's labeling and
marketing of its products to products manufactured
by its generic competitors. Such a theory, however,
fails to satisfy the threshold requirement of a
products-liability action –- that the defendant's
product have injured the plaintiff. As the district
court stated, 'Just because a company is in the same
business as a tortfeasor, the company is not
automatically liable for the harm caused by the
tortfeasor's product.'

"The plaintiffs' argument –- that the name-brand
defendants' liability stems from the fact that the
regulatory structure governing name-brand and
generic drugs makes it foreseeable that patients and
their physicians will rely on the name-brand labels
to use and prescribe generic drugs –- has been
rejected by all but one of the courts that have
considered it. The leading case is Foster v.
American Home Products Corp., 29 F.3d 165 (4th Cir.
1994), in which the court held that the manufacturer
of a name-brand drug has no duty to patients who
ingested only a generic version of the drug
manufactured by the name-brand drug company's
competitors. ... As have the majority of courts to
address this question, we reject the argument that
a name-brand drug manufacturer owes a duty of care
to individuals who have never taken the drug
actually manufactured by that company."

657 F.3d at 423-24 (some emphasis added).

In the last of the aforesaid decisions by federal courts

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of appeals, the United States Court of Appeals for the Fifth

Circuit explicitly held in Demahy v. Schwarz Pharma, Inc., 702

F.3d 177, 184 (5th Cir. 2012), that PLIVA changed nothing as

to brand-name manufacturers:

"We do not view [PLIVA] as overruling Foster [v.
American Home Products Corp., 29 F.3d 165 (4th Cir.
1994),] because the court in Foster did not reach
its holding by relying on the ability of a plaintiff
to sue generic manufacturers. Instead, the court's
holding was based on its interpretation of Maryland
law and the conclusion that a name-brand
manufacturer has no duty of care to consumers that
are not using the manufacturer's product. Foster,
29 F.3d at 171–72; see also Smith v. Wyeth, 657 F.3d
420, 423–24 (6th Cir. 2011) (following Foster's
conclusion that name-brand manufacturers have no
duty to generic-brand consumers). The Foster
court's opinion in dicta on the viability of suits
against generic manufacturers was proved wrong, but
this fact does not impose on name-brand
manufacturers a duty of care to customers using
generic products."

In Phelps v. Wyeth, Inc., 857 F. Supp. 2d 1114 (D. Or.

2012), the federal district court for Oregon also explicitly

rejected the notion that PLIVA changed anything as to brand-

name manufacturers. In an opinion reflective of the other

post-PLIVA decisions by federal district courts, it explained:

"[W]hile [PLIVA] overrules Foster [v. American Home
Products Corp., 29 F.3d 165 (4th Cir. 1994),] with
respect to a generic manufacturer's ability to alter
labels, it does not overrule Foster's holding
regarding the liability of name-brand manufacturers.

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Indeed, the Foster court's reluctance to hold
name-brand defendants liable for generic drugs did
not depend on a generic manufacturer's ability to
alter the label, but rather on concepts of
foreseeability and duty. Consequently, [PLIVA] does
not overturn the central holding in Foster."

857 F. Supp. 2d at 1119 (emphasis added).

The Oregon court provided an instructive analysis as to

the necessity of a relationship in order for there to exist a

duty for purposes of a common-law claim based on deficient

labeling of drugs:

"It is undisputed that Mrs. Phelps never ingested
metoclopramide manufactured by any of the name-brand
defendants. ... Under Oregon's product liability
law, the name-brand defendants cannot be found
liable for plaintiffs' injuries because plaintiffs
cannot show that their injuries resulted from the
use of the name-brand manufacturers' product. See
McEwen v. Ortho Pharma. Corp., 270 Or. 375, 407, 528
P.2d 522 (1974). Nonetheless, plaintiffs request
that the court apply common law principles of
negligence, fraud, and misrepresentation to extend
liability to the name-brand defendants. They argue
that regardless of whether Mrs. Phelps ingested the
name-brand defendants' product, the name-brand
defendants owed her a duty of care.

"....

"Plaintiffs cite neither Oregon nor federal law
to support this proposition. Instead, plaintiffs
argue that manufacturers owe a general duty to use
care in connection with their conduct to all who may
[be] injured by it, if such conduct is carried out
in a negligent manner and results in foreseeable
injuries. ... (citing Palsgraf v. Long Island R.R.

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Co., 248 N.Y. 339, 162 N.E. 99 (1928)). Plaintiffs
assert that, based on federal regulations,
name-brand defendants should have known that all
generic manufacturers were required to duplicate the
information on name-brand labels for generic drugs,
and that generic manufacturers were prevented from
including additional warnings or independently
warning doctors of metoclopramide's risks.
Additionally, plaintiffs argue that name-brand
defendants knew or should have known that their
label did not adequately warn of the risks
associated with metoclopramide. Consequently,
plaintiffs assert that the generics defendants'
reliance on name-brand defendants' labels was a
foreseeable cause of their injuries.

"... [In Foster v. American Home Products
Corp., 29 F.3d 165 (4th Cir. 1994),] [t]he
plaintiffs brought suit against the name-brand
manufacturer for negligent misrepresentation, but
the Fourth Circuit ruled that Maryland law did not
allow a manufacturer to be liable for an injury
caused by a competitor's product. Id. at 171.
While Foster recognized that reliance on the label
was foreseeable, the court explained that
foreseeability alone does not create a duty of care,
and the court specifically rejected the plaintiffs'
negligence claim. Id. ... The Foster court found
that there is '(n)o legal precedent for using a name
brand manufacturer's statements about its own
product as a basis for liability [for] injuries
caused by other manufacturers' products, over whose
production the name brand manufacturer had no
control.' Id. at 170. Name-brand defendants cite
a plethora of courts which have followed Foster and
concluded that name-brand defendants cannot be held
liable for injuries caused by products produced by
a generic manufacturer. See e.g. Smith v. Wyeth,
Inc., 657 F.3d 420, 424 (6th Cir. 2011); Metz v.
Wyeth LLC, 830 F. Supp. 2d 1291 (M.D. Fla. 2011)."

857 F. Supp. 2d at 1120-21 (emphasis added).

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Finally, the Oregon court expressed the same

understanding of the text of the PLIVA decision that is

offered above:

"In fact, the Supreme Court [in PLIVA]
acknowledged that the dual holdings of Foster and
[PLIVA] left the plaintiff there with no remedy, as
she could not successfully bring a claim against
name-brand manufacturers under Foster and was barred
on other grounds from suing the generic
manufacturers. [PLIVA], [564 U.S. at ___,] 131 S.
Ct. at 2581 (acknowledging 'the unfortunate hand
that federal drug regulation has dealt' plaintiff).
The majority further stated that Congress or the FDA
could change the law ...."

857 F. Supp. 2d at 1119-20 (emphasis added).

In an opinion issued not long after PLIVA, a federal

district court applied the law of our neighboring state of

Florida:

"The vast majority of courts, in Florida and
elsewhere, that have addressed the issue now before
the Court have consistently held that consumers may
not bring claims for negligence, fraud, strict
liability, misrepresentation, or breach of warranty
against a brand name pharmaceutical manufacturer
when the consumers only ingested generic versions of
the drug manufactured by third parties. [Numerous
citations omitted.]

"Plaintiffs attempt to overcome the nearly
unanimous adverse precedent by arguing that the
Supreme Court's decision in PLIVA, Inc. v. Mensing,
564 U.S. ___, 131 S. Ct. 2567, 180 L.Ed.2d 580
(2011), warrants a change in how Florida law is
applied to producers of brand name pharmaceuticals.

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The thrust of Plaintiffs' argument is that the
Fourth Circuit's holding in the seminal case of
Foster v. American Home Products Corp., 29 F.3d 165
(4th Cir. 1994), was based on the proposition
(discussed in dicta) that consumers could recover
from generic manufacturers for misrepresentations
relating to their products. Id. at 170. While it
is true that this proposition was rejected by the
Supreme Court in [PLIVA], this proposition was by no
means central to the ultimate holding in Foster.
The Fourth Circuit's holding in Foster was based on
its interpretation of Maryland law and the general
rule that one manufacturer cannot be held liable on
a negligent misrepresentation theory for injuries
caused by another manufacturer. Id. In fact, the
Foster court held that, irrespective of whether
consumers could recover from generic drug
manufacturers, a brand name manufacturer simply had
no duty of care to individual consumers that did not
use the named brand manufacturer's product. Id. at
171."

Metz v. Wyeth LLC, 830 F. Supp. 2d 1291, 1293-94 (M.D. Fla.

2011) (emphasis added).32

32
The Florida federal district court went on to explain
that "many of the pre-[PLIVA] decisions in Florida and
elsewhere apparently assumed that consumers would have a
remedy against generic drug manufacturers" but that this
assumption was not the basis for those decisions. 830 F.
Supp. 2d at 1294.

As did the Oregon federal court in Phelps v. Wyeth,
supra, the federal district court in Metz explained how the
opinion in PLIVA itself reveals the Supreme Court's
understanding that its decision in PLIVA changed nothing as to
the lack of a duty on the part of brand-name manufacturers
with respect to those injured as a result of deficient
labeling of other manufacturers' products:

"Tellingly, the Supreme Court in [PLIVA] appeared to
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This Court's Opinion

In addition to dozens upon dozens of cases from other

jurisdictions directly addressing the issue before us, Wyeth

cites four Alabama cases for the proposition that a duty

arising from a relationship or nexus between the parties is

necessary: Keck v. Dryvit Systems, Inc., 830 So. 2d 1 (Ala.

2002); State Farm v. Owen, 729 So. 2d 834 (Ala. 1998); DiBiasi

v. Joe Wheeler Electric Membership Corp., 988 So. 2d 454 (Ala.

2008); and Thompson-Hayward Chemical Co. v. Childress, 169 So.

2d 305 (Ala. 1964). The main opinion responds to these four

cases by stating: "These cases are easily distinguishable

from this case. Here, Wyeth authored the label with its

warnings, and the generic manufacturers, as required by FDA

regulations, copied that label verbatim." ___ So. 3d at ___.

The fact that the generic manufacturer's label must contain

the same information as the label published by Wyeth, the

contemplate that consumers of generic drugs may be
without a remedy when it noted 'the unfortunate hand
that federal drug regulation has dealt [consumers of
generic drugs].' [564 U.S. at ___, 131 S.Ct.] at
2581; see [564 U.S. at ___, 131 S.Ct.] at 2592
(Sotomayor, J., dissenting)(noting that under the
majority's decision, a consumer of a generic drug
'now has no right to sue')."

830 F. Supp. 2d at 1294.
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name-brand manufacturer, is true, but that fact does not make

the present case distinguishable from the four cases cited.

In each of those four cases, it was foreseeable that the

plaintiff would be injured by the tortious conduct of the

defendant. Despite this foreseeability, each of those cases

was decided based on the fact that the alleged tortfeasor had

no relationship or nexus with the plaintiff giving rise to a

duty to the plaintiff.

Likewise, and admittedly without question given the

federal regulatory scheme for generic drugs, it was

foreseeable that a generic drug might one day be produced and

that, if it was, it would replicate any deficiency in Wyeth's

brand-name drug, including its labeling, that might have been

approved by the FDA. As was true in each of those other

cases, however, such foreseeability, no matter how clear,

simply is not all that is required. There was no liability in

those four cases because the defendant did not have the

requisite relationship or nexus with the injured party.

Because the same is true here, those cases are not

distinguishable, but instead support Wyeth's position.33

33
The problem in this case is that the relationship or
nexus to which one would normally look as the basis for a duty
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The main opinion concludes its analysis by quoting a

passage from a 1998 opinion of the Court of Civil Appeals in

Carter v. Chrysler Corp., 743 So. 2d 456 (Ala. Civ. App.

1998), which, in turn, quotes a 1994 decision of the Alabama

Supreme Court, Hines v. Riverside Chevrolet-Olds, Inc., 655

So. 2d 909, 919-20 (Ala. 1994). As a threshold matter, I find

the premise of the analysis quoted from Hines circular and

confusing: "'"The extent of a legal duty not to make a false

representation or to suppress a material fact informs our

analysis of whether two parties have a sufficient relationship

exists between the consumer and the generic manufacturer. As
discussed, see note 27, supra, one therefore would expect that
it would be the generic manufacturer that would bear
responsibility for the plaintiffs' injuries. Nor would such
an outcome be unfair. The generic manufacturer is not
required to take on the manufacture or distribution of the
generic drug. It does so freely, weighing the risks and
rewards of manufacturing and selling a generic drug under
whatever conditions are imposed by federal law. No one
requires it to enter the market -- not the federal government,
and certainly not the brand-name manufacturer that developed
the drug and that stands to lose market share and attendant
profits if the the generic manufacturer does enter the market.
The generic manufacturer makes these decisions freely, knowing
that when it seeks to profit from marketing a generic drug,
certain risks come with that decision. It is not the fault of
the brand-name manufacturer that the federal government has
decided that the consumer of a competitor's product is to be
blocked from imposing on that competitor the costs that would
normally accompany the rewards attendant to the sale of that
product.
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on which to base a duty to disclose."'" ___ So. 3d at ___

(emphasis added). This passage essentially says that "the

extent of a legal duty" will determine whether there is enough

of a relationship on which "to base a duty."

Leaving aside the circularity of its premise, Hines does

state that "the fact that two parties have had no contractual

relationship or other dealings does not preclude the finding

of a legal duty not to make a material misrepresentation or to

suppress a material fact." 655 So. 2d at 920. It adds,

however, that "whether a duty to disclose exists must be

determined by examining the particular facts of each case."

Id.

Hines did not involve an attempt to hold a manufacturer

liable for injuries where the plaintiff has not used a product

manufactured or sold by the defendant. Instead, Hines is a

classic "privity" case. The question presented and addressed

in Hines is whether the lack of a contract or other direct

dealing between the plaintiff and the defendant -- lack of

privity -- prevents the plaintiff from suing the defendant to

recover for personal, or bodily, injuries. It is critical to

a proper prospective of the Hines decision to note that the

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injury litigated in that case resulted from the plaintiff's

use of the defendant's product.

Carter v. Chrysler and the cases cited in Hines address

the same question as did Hines.34 In accordance with the

movement of American jurisprudence in the last century away

from a privity-based model for recovery for personal injuries,

Hines and those other cases found privity to be unnecessary

for a claim based on personal injuries. The lack of privity

in those cases does not mean, however, that there was not a

"relationship," or nexus, between the plaintiff and the

defendant arising out of the fact that the plaintiff was

injured by the defendant's product; there was. There is not

here.

Ultimately, the main opinion is inextricably grounded on

a single notion: The foreseeability of a deficiency in a

brand-name drug, including its labeling, being replicated in

a generic drug, including its labeling, is so great that we

34
"Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So. 2d
738, 742-43 (Ala. 1990); Lawyers Title Ins. Corp. v. Vella,
570 So. 2d 578, 585 (Ala. 1990); Hopkins v. Lawyers Title Ins.
Corp., 514 So. 2d 786 (Ala. 1986); Mid-State Homes, Inc. v.
Startley, 366 So. 2d 734 (Ala. Civ. App. 1979); Chandler v.
Hunter, 340 So. 2d 818 (Ala. Civ. App. 1976). Cf. Sims v.
Tigrett, 229 Ala. 486, 158 So. 326 (1934)." Carter v.
Chrysler Corp., 743 So. 2d at 461.
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must recognize a duty owing from the brand-name manufacturer

to whomever might be hurt by the deficiency in the generic

drug. But the clear foreseeability upon which this notion is

based has either been explicitly acknowledged or clearly

understood by each of the scores of other federal and state

courts that have addressed the issue we now address. Yet,

essentially all of them reach a different conclusion than do

we. They do so on the same ground that Professor Prosser

implores us to remember: Foreseeability alone is not enough.

See discussion, infra, citing W. Prosser, Law of Torts, 708

(4th ed. 1971). In the words of the main opinion, therefore,

I can reach no conclusion other than that the "ground" we plow

today is "new." And we are the only court in the nation

plowing it.35

35
The special concurrence states that "[n]o decision of
any other jurisdiction addresses the precise question of
Alabama law discussed in our answer." ___ So. 3d at ___
(Shaw, J., concurring specially). Beginning with Foster,
however, there has been an almost endless stream of published
opinions discussed hereinafter that address the exact issue we
address here: a claim of "fraud," "suppression," or
"misrepresentation" in connection with a generic
manufacturer's use of deficient labeling in the "pervasively"
regulated prescription-drug industry. And the fundamental
legal principles employed in the analysis of this issue in
these other cases are as elemental and imbedded in the law of
this State as they are in the law of the other states
discussed in those decisions.
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A "Mountain of Authority" and an
"Overwhelming National Consensus"

Aside from the discussion of the four cases and Hines

reviewed above, the discussion and rationale offered by the

main opinion today on application for rehearing are

essentially unchanged from those offered in the opinion on

original submission. Therefore, it is noteworthy that, since

that original decision, there have been another dozen or more

decisions on this issue by federal and state courts around the

country, including decisions by four federal courts of

appeals, two of them weighing in for the first time. In

addition, the United States Supreme Court has now denied

certiorari review in Demahy v. Schwarz Pharma, Inc., 702 F.3d

177 (5th Cir. 2012), cert. denied, 134 S. Ct. 57 (2013).36

None of these courts have been persuaded by the rationale

offered by this Court's original opinion.

Among the courts that have not been persuaded by our

original decision is the Court of Appeals for the Fifth

Circuit, which has decided two additional cases reaffirming

the sound rationale it first embraced in Demahy. See Lashley

36
The Supreme Court previously had denied certiorari
review in Smith v. Wyeth, Inc., 657 F.3d 420(6th Cir. 2011),
cert. denied, 132 S. Ct. 2103 (2012).
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v. Pfizer, Inc., 750 F.3d 470 (5th Cir. 2014); Del Valle v.

Teva Pharm. USA, Inc., 750 F.3d 470 (5th Cir. 2014)

(consolidated cases).

Likewise, the Court of Appeals for the Eighth Circuit has

decided yet another case reaffirming its position. In Bell v.

Pfizer, Inc., 716 F.3d 1087 (8th Cir. 2013), the Eighth

Circuit held that, under Arkansas law, (i) the plaintiff's

contention that "her injuries were foreseeable" was

"insufficient" to impose a duty on the brand-name defendants;

(ii) that the plaintiff had to "show that a product

manufactured or distributed by the brand[-name] defendants

caused her injuries"; and (iii) that because the plaintiff

"never used Reglan the brand[-name] defendants manufactured,

[she] could not hold them liable under Arkansas law." 716

F.3d at 1092-93. Further, the Eighth Circuit flatly rejected

the plaintiff's suggestion that there was an "exception" to

the "Arkansas product identification requirement" for

"misrepresentation and fraud." Id.

Recent appellate court decisions in Iowa are in accord.

In Huck v. Trimark Physicians Group, 834 N.W.2d 82 (Iowa Ct.

App. 2013) (unpublished disposition), the Iowa Court of

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Appeals reaffirmed the settled, common-law rule that "'a

plaintiff in a products liability case must prove that the

injury-causing product was a product manufactured or supplied

by the defendant.'" (Quoting Mulcahy v. Eli Lilly & Co., 386

N.W.2d 67, 76 (Iowa 1986).) Furthermore, much like decisions

of this Court in the past, see, e.g., Pfizer, Inc. v. Farsian,

682 So. 2d 405 (Ala. 1996), the Huck court explained that

plaintiffs who allege physical injuries caused by a product

have, "regardless of the theory of liability" asserted, a

products-liability claim that requires "product

identification," a requirement that cannot be circumvented by

pleading claims of "strict liability, negligence,

misrepresentation, breach of warranties," and the like. See

also note 31, supra.

Shortly before the release of the opinion in this case on

rehearing, the Iowa Supreme Court vacated the decision of the

Iowa Court of Appeals. It did so, however, in an opinion

specifically rejecting this Court's opinion on original

submission in the present case and agreeing with the Iowa

Court of Appeals' position on the issue before us: "We adhere

to [certain] bedrock principles ..., and join the multitude of

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courts that have concluded brand[-name] defendants owe no duty

to consumers of generic drugs." Huck v. Wyeth, Inc., [Ms. 12-

0596, July 11, 2014] ___ N.W.2d ___, ___ (Iowa 2014) (also

declining, in its words, "to step onto the slippery slope"

that could lead to brand-name-manufacturer liability for harm

caused by copies of other types of products manufactured by

competitors).

Three of the federal courts of appeals that have

addressed the issue since our opinion on original submission

specifically acknowledge our decision. All three of them, the

United States Courts of Appeals for the Sixth, Tenth, and

Eleventh Circuits, rejected our reasoning. See Strayhorn v.

Wyeth Pharm., Inc., 737 F.3d 378 (6th Cir. 2013); Schrock v.

Wyeth, Inc., 727 F.3d 1273 (10th Cir. 2013); and Guarino v.

Wyeth, LLC, 719 F.3d 1245 (llth Cir. 2013).37 See also Metz

v. Wyeth, LLC, 525 F. App'x 893 (11th Cir. 2013) (not

37
In each of these three cases, the federal Court of
Appeals refers to this Court's decision on original submission
as being one of only two or three that have held as it did.
See, e.g., Guarino, 719 F.3d at 1253, citing in juxtaposition
to the "mountain" of cases to the contrary, this court's
decision and the decisions of the Vermont district court in
Kellogg v. Wyeth, 762 F. Supp. 2d 694, 708–09 (D. Vt. 2010),
and the California district court in Conte v. Wyeth, Inc., 168
Cal. App. 4th 89, 85 Cal. Rptr. 3d 299, 310 (2008).
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published in F.3d). Two of those circuits, the Tenth Circuit

and the Eleventh Circuit, have now weighed in for the first

time.

Specifically, in Schrock v. Wyeth, the Court of Appeals

for the Tenth Circuit joined all the other federal courts of

appeals that have addressed the issue by declining to "impose

a duty on drug manufacturers to warn of dangers in their

competitors' products" because the brand-name defendants

"d[id] not have any relationship with the [plaintiffs]." 727

F.3d at 1283. And in Guarino v. Wyeth, LLC, the Eleventh

Circuit explained in no uncertain terms that there simply can

be "no liability when we know with certitude that a given

manufacturer did not produce the allegedly dangerous product."

719 F.3d at 1251.

This Court continues to stand alone as the only appellate

court in the country to hold that a brand-name manufacturer

may be responsible for injuries caused to a party who ingests

a generic drug that the brand-name manufacturer did not

manufacture or sell. According to Wyeth, over 90 cases (a

figure that includes trial courts) have now been decided in 25

states, including every state that borders Alabama, the

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federal circuit court that encompasses Alabama, and all six

federal courts of appeals to have considered the issue. With

the exception of two or three federal district court decisions

already identified, all of them disagree with the position

taken by this Court.

If the cases that decide the issue differently than we do

were not logical and well reasoned, if they were not based on

time-tested, bedrock legal principles, or if they did not

resolve all the alleged distinctions between prescription-drug

cases and other types of cases that have been raised in the

main opinion and in the special concurrence, then perhaps

their sheer number would not matter. But they are all these

things.

The Eleventh Circuit Court of Appeals has put it this

way:

"Our conclusion is fortified by the fact that
the overwhelming national consensus -- including the
decisions of every court of appeal and the vast
majority of district courts around the country to
consider the question -- is that a brand-name
manufacturer cannot be liable for injuries caused by
the ingestion of the generic form of a product.
See, e.g., Bell v. Pfizer, Inc., 716 F.3d 1087, No.
12–1674 ... (8th Cir. June 14, 2013) (rejecting
negligence, misrepresentation, and fraud claims
against the brand manufacturer of metoclopramide,
and explaining that '[a]n overwhelming majority of

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courts considering this issue ... have rejected
[plaintiff's] theory of liability' (internal
quotation marks omitted)); Demahy v. Schwarz Pharma,
Inc., 702 F.3d 177, 182–83 (5th Cir. 2012) (per
curiam), petition for cert. filed, 81 U.S.L.W. 3519
(U.S. Mar. 7, 2013) (No. 12–1093); Smith [v. Wyeth,
Inc.], 657 F.3d [420] at 423–24 [(6th Cir. 2011)]
('The plaintiffs' argument -– that the name-brand
defendants' liability stems from the fact that the
regulatory structure governing name-brand and
generic drugs makes it foreseeable that patients and
their physicians will rely on the name-brand labels
to use and prescribe generic drugs -– has been
rejected by all but one of the courts that have
considered it.'); Mensing [v. Wyeth, Inc.], 658 F.3d
[862] at 867 [(8th Cir. 2011)] (expressly
reinstating the portion of the opinion holding that
brand-name manufacturers cannot be held liable under
Minnesota law for damage caused by generic drugs);
Foster v. Am. Home Prods. Corp., 29 F.3d 165, 170–71
(4th Cir. 1994); Gardley–Starks v. Pfizer, Inc., 917
F. Supp. 2d 597 ... (N.D. Miss. Jan. 10, 2013) ('The
Court concludes that Mississippi law, consistent
with the vast majority of courts to consider this
issue, would not recognize a cause of action --
however styled -- against a brand manufacturer for
injuries caused by use of its competitors' generic
product.'); see also id. at ... n. 4 (noting the
defendants' citation to 'sixty-six decisions
applying the law of twenty-three different
jurisdictions holding that brand-name manufacturers
of a drug may not be held liable under any theory
for injuries caused by the use of a generic
manufacturer's product'). But see Kellogg v. Wyeth,
762 F. Supp. 2d 694, 708–09 (D. Vt. 2010); Wyeth,
Inc. v. Weeks, ... No. 1101397 ... (Ala. Jan. 11,
2013), reh'g granted (June 13, 2013); Conte v.
Wyeth, Inc., 168 Cal. App. 4th 89, 85 Cal. Rptr. 3d
299, 310 (2008). Although only the law of Florida
controls the outcome here, the cases denying
recovery to plaintiffs bringing claims identical to
those we confront in this case are legion, and this

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mountain of authority steels us in our determination
that Florida law does not recognize a claim against
the brand manufacturer of a prescription drug when
the plaintiff is known to have consumed only the
generic form."

Guarino, 719 F.3d at 1252-53 (emphasis added).

The bedrock principles of tort law in this State are no

different than the bedrock principles of tort law in every

other state in this country, including the two dozen states

whose laws have been considered in what the Eleventh Circuit

call an "overwhelming national consensus." There is no reason

for this State not to be part of that consensus.38

38
The special concurrence characterizes the main opinion
as simply applying "established Alabama decisions,"
"established Alabama tort law" and "existing law," concluding
that the main opinion therefore "epitomizes ... judicial
restraint." ___ So. 3d at ___ (Shaw, J., concurring
specially). For the reasons explained in this writing,
however, existing Alabama precedents do not support the
holding of this Court today. To the contrary, the decision of
this Court today essentially stands alone against Alabama
cases recognizing and applying the fundamental principles of
relationship and duty discussed at length herein and against
an unprecedented number (approaching 100 cases) from other
jurisdictions applying the same fundamental principles
specifically to the prescription-drug industry. As the
Eleventh Circuit puts it, these latter cases do indeed
constitute a "mountain of authority" representing an
"overwhelming national consensus" to the contrary of the
conclusion reached by this Court today.

As for the persistent suggestion that this "mountain of
authority" somehow addresses some issue or issues different
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III.

One of the many amici curiae briefs supporting Wyeth

asserts, with supporting authority:

"Developing a prescription drug and taking it to
market is a monumental undertaking. On average, it
requires more than seven years and almost $2 billion
to develop a single drug, obtain FDA approval for
it, and bring it to market. 'Name brand
manufacturers undertake the expense of developing
pioneer drugs, performing the studies necessary to
obtain premarketing approval, and formulating
labeling information.' Foster [v. American Home
Products Corp.], 29 F.3d [165] at 170 [(4th Cir.

than the issue this Court addresses today, I can do little
more than once again point the reader to the discussion of and
the quotations from so many of the cases that are part of that
"mountain," as set out extensively on the several dozen pages
that immediately precede this one. As already observed,
beginning with Foster, most of this almost endless stream of
precedents involves the exact issue addressed here, a claim of
"fraud," "suppression," or "misrepresentation" in connection
with a generic manufacturer's use of deficient labeling in the
"pervasively" regulated prescription-drug industry. And,
again, the fundamental legal principles employed in the
analysis of this issue in these other cases are as elemental
to the law of this State as they are to the law of the states
discussed in those decisions.

Finally, although I think it clear enough from the
discussion that both precedes and follows this footnote, let
me be explicit in stating that any discussion of economic or
other practical concerns found herein is not offered out of a
perceived need to supplant or to supplement the case authority
cited. It is but to further explain the reason and soundness
of that authority and, to that end, the ramifications
generally and in regard to the prescription-drug industry in
particular of an abandonment of the fundamental legal
principles that inform that authority.
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1994)].

"Brand-name manufacturers make research and
development decisions against a particular legal
backdrop. Under traditional tort principles, the
brand-name manufacturer knows that it can be held
responsible for injuries caused by its products
under certain circumstances. See Wyeth v. Levine,
555 U.S. 555 (2009). The brand-name manufacturer
also knows, however, that it will not be held liable
for injuries caused by products that it neither made
nor distributed. See, e.g., Foster, 29 F.3d at 168,
171.

"....

"... [T]he Plaintiffs' novel liability theory
would retroactively frustrate legitimate
investment-backed expectations. Decisions were made
and capital invested decades ago to produce a drug
for sale in a legal system that (as is traditional)
allows recovery for injuries caused by the
brand-name company's own product, but not for
injuries caused by the products made by its
competitors. The abrupt change that the Plaintiffs
seek would wipe away that system and replace it with
bet-the-company uncertainty.

"[Looking forward], Plaintiffs' theory would
destroy the predictability needed by brand-name
manufacturers trying to decide whether to invest
almost $2 billion and seven years of time to develop
a new drug. ..."

Brief of amici curiae, The Chamber of Commerce of the United

States of America and the Business Council of Alabama, at 20-

24 (emphasis in original; some citations omitted).

Even proponents of the result urged by the plaintiffs

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admit that such a result is unfair to the brand-name

manufacturers. See, e.g., Allen Rostron, Prescription for

Fairness: A New Approach to Tort Liability of Brand-Name and

Generic Drug Manufacturers, 60 Duke L.J. 1123, 1181 (Feb.

2011) (admitting that "[u]nder the [approach of the California

appeals court in] Conte[39] if a drug lacks adequate warnings,

its brand-name manufacturer may wind up being liable for harm

to those who took either the brand-name or the generic version

of the drug, whereas the generic manufacturers likely will

wind up not being liable to anyone. That asymmetry is

particularly unfair given that the brand-name manufacturers

make substantial investments in developing new drugs from

which generic producers profit by copying."); Wesley E. Weeks,

Picking Up the Tab for Your Competitors: Innovator Liability

After PLIVA, Inc. v. Mensing, 19 Geo. Mason L. Rev. 1257, 1259

(Summer 2012) (conceding that holding brand-name manufacturers

liable "is far from ideal. The brand-name manufacturer invests

resources to produce helpful pharmaceuticals, and under

innovator liability, it would be liable for harm caused by its

39
Conte v. Wyeth, Inc., 168 Cal. App. 4th 89, 85 Cal.
Rptr. 3d 299 (2008).
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competitors' drugs. As this reduces the profitability of

creating new drugs, it could provide drug developers with a

negative incentive, reducing the number of beneficial drugs

developed in this country. Meanwhile, generic drug

manufacturers are insulated from failure-to-warn lawsuits by

the preemption recognized in [PLIVA].").

Another concern is insurability:

"[G]iven the near impossibility of formulating
bulletproof labeling, insurability represents a
concern: cost spreading would further burden the
shrinking share of customers for the brand-name drug
(or else later patients taking unrelated drugs
produced by that defendant) for the benefit of
customers of the competitor's drug (who are already
free riding on the original research and development
efforts of the brand-name manufacturer). This
threatens to chill therapeutic product innovation
...."

Lars Noah, Adding Insult to Injury: Paying for Harms Caused by

a Competitor's Copycat Product, 45 Tort Trial & Ins. Prac.

L.J. 673, 695 n.69 (2010).

All of these concerns are elevated by the realization

that there will be no correlation between the brand-name

manufacturer's continued participation in the marketplace with

its own drug and its responsibility for generic drugs

manufactured and sold by others. Under the rationale urged by

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the plaintiffs, and accepted by the majority of the Court

today, a brand-name manufacturer's complete departure from the

marketplace would offer no logical reason for terminating its

responsibility for the deficiencies in the labeling associated

with generic versions of its drugs that may be marketed

indefinitely thereafter by its former competitors and perhaps

even new entrants into the market.40 At least one commentator

has noted that this is a distinct possibility. See Noah, 45

Tort Trial & Ins. Prac. L.J. at 691-92 (noting as an example

Hoffmann-La Roche's recent decision to withdraw its much

litigated drug Accutane from the market and observing that,

"[a]s a regulatory matter, so long as FDA does not withdraw

the innovator's NDA [new drug approval] on safety or

effectiveness grounds, existing (and the possibility for

future) ANDAs [abbreviated new drug approvals] would remain

unaffected").

Finally, and most troubling, I see no principled barrier

to the extension of the "foreseeability" doctrine to deficient

40
In fact, one of the defendants in the case before us
today, Wyeth, Inc., ceased manufacturing Reglan or making any
representations concerning it in about 2002; it sold its right
to produce the drug to codefendant Schwarz Pharma, Inc.
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representations or design defects made by developers of other

types of popular products copied by competitors. See, e.g.,

Huck v. Wyeth, supra. The line drawn today between the

prescription-drug industry and all other industry exists only

because we say it does; it will continue to exist only for so

long as we say it does. There may be differences in the

degree of foreseeability, but if foreseeability without

relationship is to be the test, the line between the

prescription-drug industry and other industry is arbitrary,

and there is no principle to which this or other courts may

anchor themselves in an effort to hold that line.41

41
Even the United States District Court for the Middle
District of Alabama, in its order certifying to us the
question at hand, agrees:

"[T]he question's significance extends well beyond
the Reglan litigation –- and for that matter, even
beyond pharmaceutical litigation. It is likely to
recur any time a brand-name manufacturer (of any
product) is sued on fraud, misrepresentation, and/or
suppression theories by a plaintiff who claims to
have been injured while using a generic-equivalent
product."

See also Alissa J. Strong, "But He Told Me It was Safe!": The
Expanding Tort of Negligent Representation, 40 U. Mem. L.
Rev. 105, 142 (Fall 2009) (explaining that it is "not
unreasonable to assume" that the Conte decision could be
applied outside the drug context).
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Again, however, even if somehow this Court could

guarantee that the "foreseeability" analysis embraced today

never finds its way into cases involving other products or

endeavors, either in this jurisdiction or in others, the

potential deleterious effect on the prescription-drug industry

and those that depend upon it provide more than enough

concern. In a 1977 case in which a federal court in New York

explained that the fact that it was foreseeable that a

statement might be relayed to and relied upon by a party with

whom the maker had no relationship was not sufficient to

create a duty to that party. In so doing, the court heeded

the concerns of none other than Professor Prosser:

"[W]here misstatements are claimed to be the cause
of loss, even a 'reasonable anticipation that the
statement will be communicated to others whose
identity is unknown to the defendant, or even
knowledge that the recipient intends to make some
commercial use of it in dealing with unspecified
third parties, is not sufficient to create a duty of
care towards them.' W. Prosser, Law of Torts, 708
(4th ed. 1971). The reason for such a rule is
obvious. To quote Prosser again, it is required in
order to avoid '[t]he spectre of unlimited
liability, with claims devastating in number and
amount crushing the defendant because of a momentary
lapse from proper care. ...' Id."

Demuth Dev. Corp. v. Merck & Co., 432 F. Supp. 990, 993-94

(E.D.N.Y. 1977). We too should heed Professor Prosser's

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concerns.

The investment and innovation that over the past 50 years

have resulted in the fastest pace of medical advances in human

history have depended upon the incentives made available by

America's free-market system. As they have for all types of

products, the free-market system and the legal framework in

which it has operated have coupled the risks and rewards of

developing and distributing new medicines and, in so doing,

have allowed entrepreneurs and innovators to assume both in

corresponding measure. We now disrupt this critical dynamic.

145