A couple of years ago, I discussed State ex rel. Johnson & Johnson Corp. v. Karl, in which the Supreme Court of Appeals of West Virginia declined to adopt the learned intermediary doctrine. In case you’ve forgotten, the learned intermediary doctrine provides that a drug manufacturer does not have a duty to warn each patient who receives its prescription drug when the manufacturer appropriately warns the prescribing physician of the drug’s dangers.

Johnson & Johnson is once again a topic of discussion, this time in the influential Drug and Device Law blog written by Jim Beck and Mark Herrmann. In a post entitled Why Drug Companies Should Beware Of Doing Business In West Virginia, they point out that  a recent decision from United States District Court for the Southern District of West Virginia held that West Virginia public policy prohibits the application of the doctrine even to patients treated outside of West Virginia.

Here are the relevant facts of Woodcock v. Mylan, Inc.,2009 WL 3271252 (S.D.W.Va. October 16, 2009), as related by Beck and Herrmann:

An Alabama physician prescribes a drug to an Alabama resident. The resident uses the drug in Alabama and is allegedly injured by the drug there. Alabama law recognizes the learned intermediary doctrine, for its own sound policy reasons. But the plaintiff sues in West Virginia, which is the only state that rejects the learned intermediary doctrine. A recent case [Johnson & Johnson] says that the drug company does not get the benefit of the learned intermediary doctrine because the doctrine is repugnant to West Virginia public policy.

Mylan moved to dismiss Woodcock’s case based on a choice-of-law provision and the sufficiency of the complaint. Chief Judge Joseph R. Goodwin held that Alabama law governed all of the plaintiff’s claims except her marketing defect — failure to warn — claim, and denied the motion. He reasoned that because West Virginia has rejected the learned intermediary doctrine based on public policy grounds, applying Alabama law to the plaintiff’s claim would violate West Virginia’s public policy, so West Virginia law applies.

But I disagree with Beck and Herrmann’s characterization of West Virginia as the only state that has rejected the doctrine. According to then-Chief Justice Robin Davis, who wrote the majority opinion in Johnson & Johnson, "the total number of jurisdictions recognizing the learned intermediary doctrine, either by decision of the highest court or by statute, is only twenty-two." In addition, "[t]he highest courts of six other states have either referred to the doctrine favorably in dicta, or have adopted it in a context other than prescription drugs; but, they have not expressly adopted it with respect to prescription drugs." She then identified the remaining 22 states, including West Virginia, that have not adopted the doctrine,  and summarized its adoption as follows:

Thus, while the doctrine is widely applied among lower courts, the number of high courts who have followed suit and expressly adopted the doctrine, while admittedly in the majority, do not make up the overwhelming majority that has often been suggested by courts and commentators. (Emphasis in original.)

So unless 21 other states have adopted the doctrine in the approximately two and a half years since Johnson & Johnson was decided, West Virginia is not the only state to have rejected the doctrine.

Beck and Herrmann also offer several solutions to drug companies that want to avoid being sued in West Virginia, starting with, somewhat sarcastically, their recommendation to avoid doing business in West Virginia. Other than that, they suggest a focus on the constitutional implications of choice-of-law provisions and public policy arguments.