Last month, the Arizona Supreme Court became the most recent state high court to recognize the “learned intermediary doctrine” (LID). The LID provides a defense to drug companies in failure-to-warn products-liability cases so long as the manufacturers provided the prescribing doctor with all required safety information. In so doing, the court joined the 36 other state high courts that have expressly adopted the LID.
The case, Watts v. Medicis Pharmaceutical Corp., arose from the plaintiff’s use of the defendant’s acne medication. The plaintiff alleged that she was not properly warned about the possible side effects of taking the medication and developed lupus, she claimed, as a result of her usage of the drug. Importantly, the plaintiff did not allege that the defendant drug company failed to provide her prescribing doctor adequate warnings, just that the company did not warn her personally. The Arizona court of appeals reversed a dismissal of the claim, holding that the LID was no longer a viable legal theory and was abrogated by statute.
On appeal, the Arizona Supreme Court joined “the majority of jurisdictions that have considered the matter,” and adopted the LID. The court identified that as early as 1978, Arizona courts of appeal had applied the LID and found that public policy—namely the complexities of the pharmaceuticals industry and the difficulty of manufacturers communicating warnings directly to the multitude of possible consumers—justified the continuance of the rule. Quoting the Texas Supreme Court, the Arizona Supreme Court held that
‘[b]ecause patients can obtain prescription drugs only through their prescribing physician or another authorized intermediary and because the ‘learned intermediary’ is best suited to weigh the patient’s individual needs in conjunction with the risks and benefits of the prescription drug, we are in agreement with the overwhelming majority of other courts that have considered the learned intermediary doctrine and hold that, within the physician-patient relationship, the learned intermediary doctrine applies and generally limits the drug manufacturer’s duty to warn to the prescribing physician.’
The court identified that the LID arises from a drug manufacturer’s duty to warn; once it has provided the prescribing physician with the necessary warnings, it has fulfilled its duty and thus should be relieved from liability.
In accepting the LID, the court rejected several of the plaintiff’s arguments. First, the court was not convinced by decisions from the highest courts of West Virginia and New Jersey rejecting the LID. The court pointed out that the West Virginia case seems to have been “relegated . . . to a ‘but see’ citation” by its own high court. Further, the Arizona Supreme Court was not convinced that the New Jersey direct-to-consumer advertising exception to the LID, which holds drug manufacturers liable to consumers when they make direct claims about their products via mass marketing programs, was necessary. The court held that the Third Restatement of Torts, which it cited and adopted, already provided an exception that would sufficiently protect consumers; drug manufacturers are liable under the LID in cases where they knew or had reason to know that health-care providers could not reduce the risks of harm in accordance with their instructions.
Second, the court rejected the plaintiff’s assertion that an Arizona statute abrogated the LID. The statute, the Uniform Contribution Among Tortfeasors Act (UCATA), guarantees that a defendant can seek contribution from co-tortfeasors and eliminates plaintiffs’ ability to recover jointly. Reasoning that the LID governs to whom a prospective defendant owes a duty, while UCATA addresses fault after a plaintiff has shown liability, the court held that “[b]ecause the LID and UCATA address two distinct subjects, they are not mutually exclusive.”
Although relied upon by the plaintiff in the Arizona case, West Virginia’s rule against the LID might have seen its last days. In recent years, federal district courts in West Virginia have limited the scope of that state’s high court rule against the LID. Further, a bill has recently been introduced in the West Virginia Senate that would statutorily adopt the LID as a defense in inadequate warning cases.
As Arizona and possibly West Virginia join the clear majority of states that have adopted the LID, drug manufacturers can be assured that in a continually growing number of jurisdictions, they will not be held liable solely because a prescribing doctor failed to inform her patients about all risks associated with a medication.