There is likely no more fundamental notion in product liability law than the recognition that the defendant’s product must cause the injury complained of, and thus a product maker or seller ought not be held liable for injuries caused by a product it actually didn’t make or sell.  This is basic causation-in-fact, and the few courts that have tried to ignore this fundamental principle have needed to perform legal contortions and Olympic-level gymnastics to invent unworkable alternate rules.  “Market share liability” is an older, nearly extinct example, and a more modern excursion is the notion that the maker of a branded pharmaceutical product can somehow be held liable for injuries caused by the plaintiff’s use of a generic version of the product, which defendant didn’t make or sell.

Recently, the Alabama Legislature passed a bill to reverse their state supreme court’s decision in Wyeth Inc. v. Weeks, which had allowed a patient allegedly injured by the generic drug to sue the maker of the name-brand product.  Gov. Bentley recently signed the bill, which had overwhelming bipartisan support in the Alabama House and was passed unanimously in the state Senate.

The vast majority of state and federal courts hold that a plaintiff must have used the defendant’s actual product, and the law returns Alabama to this column.  SB80 requires that in any civil action for personal injury, death, or property damage caused by a product, regardless of the type of claims alleged or the theory of liability asserted, the plaintiff must prove, among the other traditional elements, that the defendant designed, manufactured, sold, or leased the particular product the use of which is alleged to have caused the injury on which the claim is based, and not just a similar or allegedly equivalent product.  Thus designers, manufacturers, sellers, or lessors of products not identified as having been used, ingested, or encountered by an allegedly injured party may not be held liable for any alleged injury.

The measure will take effect six months after becoming law. It appears to do away with not only so-called innovator liability, but also market share liability, alternative liability, conspiracy liability, and the other outlier industry-wide theories of liability in product cases.