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FRAUD - WYETH, INC. V. WEEKS

Wyeth, Inc. v. Weeks, [Ms. 1101397, Jan. 11, 2013] __ So. 3d __ (Ala. 2013). A brand-name manufacturer of a drug may be liable in fraud for misrepresentations (by misstatement or omission) in the warning that the brand-name manufacturer gives, even if the plaintiff receives a generic version of the drug. The Supreme Court of Alabama thus answers a question certified by the District Court for the Middle District of Alabama. This long and well-reasoned opinion includes the following points. (1) The AEMLD does not preempt other tort claims, so the fraud claim against the brand-name manufacturer is not governed by the principles of the AEMLD. (2) The Alabama Pharmacy Act permits a pharmacist to select a generic drug unless the physician indicates otherwise. (3) The warning on a generic drug must be identical to the warning on the equivalent brand-name drug. (4) Because of the learned intermediary doctrine, it is the physician who relies on the brand-name manufacturer's warning, not the customer. (5) If the physician's reliance on the brand-name manufacturer's inadequate warning causes injury to the customer, the reliance element of the customer's fraud claim against the brand-name manufacturer is satisfied. The Court engages in an extensive discussion of cases on the subject, distinguishing cases that have held that no such fraud action against the brand-name manufacturer will lie.

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