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Legislature Passes Innovator Liability Legislation

Brandon Moseley

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By Brandon Moseley
Alabama Political Reporter

Tuesday, April 28, the Alabama House of Representatives passed SB 80, which has already been passed by the Alabama Senate.  SB80 was sponsored by State Senator Cam Ward (R-Alabaster).  The legislation overturns the Alabama Supreme Court’s decision in Weeks v. Wyeth, which Sen. Ward called an outlier. 

It costs an enormous amount of money to test a potential new drug.  To get FDA (US Food and Drug Administration) approval often involves animal trials and human trials with no guarantee that the FDA will give that approval.  Once approved the pharmaceutical company only has a few years to make that money back before those patents expire and every drug manufacturer is allowed to make generic versions of made brand-name manufacturers liable for injuries arising from their competitors’ generic copycat products.  The United States has a bizarre legal system that allows law firms to solicit current/former users of drugs/treatments in class action law suits claiming side effects (many of which are often known from the drug trials) and sue the drug company that in many cases has extended their lives.  Weeks v. Wyeth held the original drug company liable not just for side effects of the name brand drug they sold; but also for the side effects of the generic copies of their drug, even though they received none of that revenue and have no control over the manufacturing process by the generic drug maker.  SB80 overturns that precedent.

Senator Ward said, “Today is a significant win for businesses that champion innovation and for Alabama’s continued economic development.  Innovation should not carry with it indefinite liability, especially for products that the creator never made or sold.  Unfortunately, our Supreme Court gave life to this warped theory of ‘innovator liability,’ even though nearly every other court nationwide has squarely rejected it. But the Legislature answered the call and moved swiftly to restore the settled legal principles that have helped to make Alabama’s growing manufacturing industry an engine of growth and a source of jobs for thousands of Alabamians.”

The Alabama Senate passed SB80 by a 32-0 margin, and the House by a 86-14 margin.  Representative Jack Williams (R-Vestavia) sponsored the House companion bill, HB 110.

Historically Alabama has been considered to be one of the worst states for companies due to tort laws here.  The legislature, especially since 2010, has worked to make the laws a little more friendly for defendants and their insurance companies.

SB80 now goes to the Governor for his signature.

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Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Economy

New unemployment claims continue to drop

Micah Danney

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There were 11,692 unemployment claims filed in Alabama last week, down from 17,439 the previous week, according to the Alabama Department of Labor.

Seventy-six percent of the claims from July 26 to Aug. 1 were related to COVID-19, according to the Alabama Department of Labor. That compares to 89 percent the week before.

New claims increased over the first half of July but declined in the second half.

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Health

Alabama nursing homes can’t use rapid COVID-19 test machines without federal guidance

In Alabama, there were 686 coronavirus deaths in long-term care facilities as of Wednesday, which was 42 percent of the state’s 1,639 COVID-19 deaths at that point.

Eddie Burkhalter

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Some Alabama nursing homes have received rapid, point-of-care COVID-19 test machines, but without guidance from the federal agency that sent them, the machines aren’t being used.

It’s been three weeks since the Centers for Medicare and Medicaid Services in a nationwide conference call with nursing home administrators announced plans to disburse the machines, which can provide results in 15 minutes.

John Matson, director of communications for the Alabama Nursing Home Association, told the Alabama Political Reporter on Wednesday that CMS has said it will send the rapid testing machines to 78 Alabama nursing homes to start, and eventually will supply one to each nursing home in the state. He said some of those 78 facilities have received them while some are still waiting for delivery.

“The biggest thing we’re waiting on from CMS is guidance on when and how it wants us to use these machines,” Matson said.

Matson said that CMS officials on the July 16 conference call said that regulations and guidance on the testing machines weren’t yet ready, but that the agency wanted to go ahead and disburse the machines.

“They wanted to distribute machines and then let the guidance and the regulations catch up,” Matson said.

The Trump administration touted the rapid tests machines’ ability to bolster testing in nursing homes, which care for older, sick people who are at most risk of serious complications and death due to coronavirus.

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As of July 30, 43 states reported 62,925 COVID-19 deaths, which was 44 percent of all coronavirus deaths in those states, according to the Kaiser Family Foundation.

In Alabama, there were 686 coronavirus deaths in long-term care facilities as of Wednesday, which was 42 percent of the state’s 1,639 COVID-19 deaths at that point.

While nursing home administrators await those federal guidelines to be able to use the rapid test machines, it’s taking longer to get COVID-19 test results from many labs. Matson said some nursing homes are seeing wait times for results as long as a week, which public health experts say makes the results nearly worthless.

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“Not every nursing home is experiencing that, but we do know that some are experiencing a longer turnaround time,” Matson said.  “As we’ve said before, knowledge is key, and when we run those tests we need those tests results back in a timely manner so we know how to properly treat our patients and our employees.”

The Alabama Department of Public Health on July 31 said that as Alabama continues to see an increase in the number of new COVID-19 cases, it’s taking commercial labs and ADPH’s lab an average of seven days to get results.

ADPH in the release states that the lengthier turnaround time for test results is due to several factors, including supply chain problems with test reagents, more demand for coronavirus tests nationwide, “and in some cases, increased numbers of unnecessary tests.”

“I think it’s important to emphasize that that is essentially a worthless result,” said Dr. Jeanne Marrazzo, director of infectious disease at UAB, during a press briefing July 30. “At that point, all it tells you is that six days ago you were negative.”

And there are problems with the rapid testing machine’s accuracy. CMS has said the machines have an error rate of between 15 and 20 percent, and that a negative test result on the machines shouldn’t be used to rule out a possible case.

“Negative results should generally be treated as presumptive, do not rule out SARS-CoV-2 infection and should not be used as the sole basis for treatment or patient management decisions, including infection control decisions,” CMS said in a FAQ on the rapid test machines for nursing homes.

Matson said CMS told nursing homes that while a negative test result should be followed up with a subsequent lab test to be certain, a positive result on the rapid test machines very likely means the person has coronavirus.

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Elections

Alabama Forestry Association endorses Tuberville

Brandon Moseley

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Republican U.S. Senate candidate Tommy Tuberville.

The Alabama Forestry Association announced Wednesday that the group is endorsing Republican Senate nominee Tommy Tuberville in the upcoming general election.

“We are proud to endorse Tommy Tuberville in the United States Senate race,” said AFA Executive Vice President Chris Isaacson. “He is a conservative with an impressive list of accomplishments, and we know that he will continue that record in his role as U.S. Senator. Tommy knows that decisions made in Washington impact families and businesses and will be an effective voice for the people of Alabama.”

“I am honored to have the endorsement of the Alabama Forestry Association,” Tuberville said. “The AFA is an excellent organization that stands for pro-business policies. Protecting Alabama industry is a key to our state’s success.”

Tuberville recently won the Republican nomination after a primary season that was extended because of the coronavirus pandemic.

Tuberville is a native of Arkansas and a graduate of Southern Arkansas University. He held a number of assistant coaching positions, including defensive coordinator at Texas A&M and the University of Miami where he won a national championship.

Tuberville has been a head coach at Mississippi, Auburn, Texas Tech and Cincinnati. In his nine years at Auburn University, the team appeared in eight consecutive bowl games. His 2004 team won the SEC Championship and the Sugar Bowl.

Tuberville coached that team to a perfect 13 to 0 season.

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Tuberville has been married to his wife Suzanne since 1991. They have two sons and live in Auburn.

Tuberville is challenging incumbent Democratic Sen. Doug Jones in the Nov. 3 general election.

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Health

Corinth, Mississippi, is the scenario that school superintendents must be prepared for

Brandon Moseley

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Many Alabama school systems will resume in-person classes later this month. Corinth, Mississippi, rushed ahead to open classes and already there are positive tests for the coronavirus, and more than 100 students are now in quarantine. This is the fear that every school superintendent in the country will have to face when making the decision on whether or not to resume in-person classes in their school systems.

Taylor Coombs, a spokesperson for the Corinth School District, told CNN that six students and one staff member have tested positive for the novel strain of the coronavirus, SARS-CoV-2. Coombs said that an additional 116 students have been considered in “close contact” of a positive case and have been sent home to quarantine for 14 days. Corinth has 2,700 students.

The Corinth School District told parents in a letter posted on Facebook Wednesday that an individual from Corinth Middle School tested positive as well as an employee at Corinth Elementary School. The letter said the school has done contact tracing and is asking anyone who had contact with the individuals to quarantine for 14 days.

While in quarantine, children cannot attend school or any school activities, such as sports.

In-person classes resumed in the district on July 27, according to the school calendar. Corinth parents were given the option of returning to the school for normal classes or doing virtual learning.

Corinth has been screening students and staff on a daily upon entering the building with temperature checks, according to the district’s reopening plan. Staff are having to answer questions daily about if they have had symptoms in the past several days. Despite this, a number of students still were infected during the first week of school and over a hundred were exposed to the virus.

On Tuesday, Mississippi Gov. Tate Reeves issued a mandatory mask mandate for the state which includes schools, beginning Wednesday.

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“I know that I want to see college football in the fall,” Reeves said. “The best way for that to occur is for us all to recognize that wearing a mask, as irritating as it can be — and I promise you, I hate it more than anybody watching today — it is critical.”

Mississippi has the fifth-highest recorded case count per 100,000 people. At least 2.13 percent of the population having been already diagnosed with the infection. Mississippi trails only Louisiana, Arizona, Florida and New York.

Alabama is seventh in the country at 1.93 percent of the population. Of Alabama’s 91,776 total cases, 21,363 — or 23 percent — were diagnosed in just the last two weeks. At least 1,639 Alabamians have died already from COVID-19, and 314 of those deaths — or 19.2 percent — were reported in just the last two weeks.

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Despite the setbacks, Mississippi is pushing ahead on reopening schools.

“I believe that there is enough motivation (now) to safely get our kids in school that we can really juice the participation of mask-wearing throughout our state for the next two weeks,” Reeves said on Tuesday when he issued the mask order and the new measures to combat the virus.

Reeves acknowledged that the earlier “piecemeal approach” had not been effective.

Alabama will follow Mississippi’s lead and begin reopening schools next week, with the understanding that outbreaks, like Corinth, are possible and perhaps even likely as we move forward with in-person classes and high school football to follow later this month.

School systems need to open with a plan for testing, quarantining and unfortunately even for the unfortunate deaths of a staff member or student.

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