A February 4, 2016 WLF Legal Pulse post discussed the Arizona Supreme Court’s acceptance of a prescription drug manufacturer’s use of the “learned intermediary doctrine” as a defense against failure-to-warn product-liability lawsuits. For prescription-only medical treatments, drug and device makers provide warnings not to the patient, but directly to the learned intermediary—the healthcare professional. As long as the manufacturer warned the healthcare provider of possible side effects, it has no duty to warn the patient. Arizona became the 37th state to recognize this defense. As the post also noted, the West Virginia legislature was at that time considering a bill that would statutorily adopt the defense.
On February 26, West Virginia became the 38th state to adopt the learned intermediary doctrine when Governor Earl Ray Tomblin signed SB 15 into law. It “[a]dopt[s the] learned intermediary doctrine as [a] defense to civil action[s] due to inadequate warnings or instructions.” The law effectively overrules a 2007 West Virginia Supreme Court decision that had rejected the defense, State ex rel. Johnson & Johnson Corp. v. Karl.