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West Virginia ex rel. Johnson & Johnson Corp. v. Karl

As if to confirm the accuracy of the Harris Poll conducted on behalf of the U.S. Chamber Institute for Legal Reform naming West Virginia as the worst litigation environment to do business in, the West Virginia Supreme Court issued a fundamentally dishonest 3-2 decision announcing that it would be the only state to refuse to apply the learned intermediary doctrine.

As the Fifth Circuit stated in Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir. 1974),

Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as a �learned intermediary� between manufacturer and consumer.

Beck and Herrmann have an impressive list of precedent of who has adopted the learned intermediary rule, a devastating critique of the West Virginia court's reasoning, and a defense of the learned intermediary rule.

Only one other court has used the excuse of the existence of direct-to-consumer advertising to justify so much as narrowing the learned intermediary rule. It, too, was dishonest, inventing a judicial exception to a statutory learned intermediary rule, NJPLA. L. 1987, c. 197, � 4. Perez v. Wyeth Laboratories, Inc., 734 A.2d 1245 (N.J. 1999). Given the benefits of direct-to-consumer advertising, these sorts of decisions are once again an example of how trial lawyers and the judges who aid and abet them are hurting consumers.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.