John Day of Day On Torts wrote a post last week about the Supreme Court of West Virginia’s recent decision in State ex rel. Johnson & Johnson Corp. v. Karl, 647  S.E.2d  899 (W.Va. 2007), in which the Court declined to adopt the learned intermediary doctrine "as an exception to the general duty of manufacturers to warn consumers of the dangerous propensities of their products."

    The learned intermediary doctrine provides that "a drug manufacturer is excused from warning each patient who receives the prescription drug when the manufacturer properly warns the prescribing physician of the product’s dangers."

    The Court reviewed the law in every other state and found that the doctrine had been adopted by decision of the state’s highest court or by statute in 22 states, while an equal number had not adopted it.  Six other states had referred to the doctrine favorably in dicta or had adopted it in a context unrelated to prescription drugs, but had not adopted it with respect to prescription drugs.

    The majority opinion found that, "Significant changes in the drug industry have post-dated the adoption of the learned intermediary doctrine in the majority of states in which it is followed.  We refer specifically to the initiation and intense proliferation of direct-to-consumer advertising, along with its impact on the physician/patient relationship, and the development of the internet as a common method of dispensing and obtaining prescription drug information."

    The Court found that West Virginia’s existing law of comparative contribution among joint tortfeasors is adequate to address issues of liability in cases where patients sued their physicians and the drug companies regarding the use of prescription drugs.  The Court also noted that drug manufacturers had the means and the ability to communicate directly and effectively with consumers, and that it was reasonable to place the burden of providing appropriate warnings on the drug manufacturers because they benefited financially from the sales of their products and possessed the knowledge regarding potential harms posed by their products. 

    Finally, I need to note one correction to John’s post.  He wrote that with the Johnson & Johnson opinion, the learned intermediary doctrine was no longer the law in West Virginia.  But the point of the decision was to decline to adopt the doctrine in West Virginia’s jurisprudence.