State Ex Rel. Johnson & Johnson Corp. v. Karl

ultimately generators public en “for

use,” public utility. NedPower is a use,” “public

That as that term is used 54-l-2(a)(2),

W. Va.Code linked regulation by

the extent of the PSC of the power generators

electric is evidenced Legislature power

fact that the bestowed the power eminent domain “electric ...

companies, public when use” well Legislature

before the created the PSC in constitutionality legis

1913. The of the 1907 upheld in Pittsburg Hydro-Elec

lation was Liston,

tric v.Co. 70 W.Va. 73 S.E. 86

Accordingly, opinion I am of the that Ned-

Power, respect EWGs, possesses to its power of eminent domain. The Court

should, therefore, have denied the relief because,

sought appellant landowners conceded, appellants

as the if NedPower public utility power

were with the of emi- they enjoin

nent domain could not the con- operation

struction and of its wind turbines private Accordingly,

as a nuisance. I dis-

sent.

647 S.E.2d 899

STATE EX REL. JOHNSON & JOHNSON

CORPORATION, Foreign Corpora-

tion, Pharmaceutica, and Janssen

Foreign Corporation Wholly- and a Subsidiary

Owned of Johnson & John-

son, Inc., Petitioners, KARL, Judge

The Honorable Mark A. County,

the Circuit Court of Marshall Wilson, M.D.,

Daniel W. and Estate of

Nancy Gellner, by Gregory Gellner, J. A.

Executor, Respondents.

No. 33211.

Supreme Appeals Court of Virginia.

West

Submitted Jan. 2007.

Decided June 2007.

Concurring Opinion of Justice

Starcher June Farmer,

Stephen B. G. Kenneth Robert- Farmer, PLLC, son, Campbell, Cline & Charleston, for the Petitioners. Fitzsimmons, Robert P. Fitzsimmons Law Offices, Gellner, Gregory A. Of- Gellner Law fices, Respondent, Wheeling, for the Estate Nancy J. Gellner. Burchett, Offutt, Jr., Jody Stephen S. D.C. Offutt, Saunders, Offutt, M. Randall L. Fish- Nord, Huntington, Casey, Patrick er & S. Hiekton, Burns, Wheeling, & White Wilson, Respondent, Daniel M.D. W. DAVIS, Chief Justice: invoking original juris- In this action prohibition, diction of this Court adopt asks this Court to excep- doctrine as an general duty of manufacturers to tion to the dangerous propensi- consumers of the summary filed a motion Janssen thorough con- products.1 After their ties of that, under the learned asserting judgment doc- sideration it had fulfilled state of light of the current trine in warnings regarding by providing industry physician/pa- to warn Apparently, the to Dr. Propulsid® Wilson. relationships, decline tient we motion for orally denied the of circuit court Accordingly, requested writ doctrine. 28, 2005, on judgment on March summary is denied. prohibition disputed questions of fact ground that Thereafter, I. pending in the ease.5 remained Janssen, inter- again relying on the learned AND PROCEDURAL FACTUAL limine doctrine, filed a motion mediary HISTORY by argument the Estate exclude evidence or petition Court on a ease is before this This pro- had a suggesting that Janssen Accordingly, the prohibition. of for writ Propulsid® to any warnings regarding vide conclusively determined not been facts have Observing that this personally. Gellner Mrs. Nevertheless, undis- appears it to be below. recognized the doctrine of the not Court has 1999, 19, Nancy J. May Mrs. puted that on intermediary, the circuit court denied drug Propul- prescribed the Gellner was by order entered on June motion Janssen’s physician, care Daniel primary her sid® 18, petition a for writ 2006. Janssen filed Wilson, M.D., pro- to this respondent J. prohibit seeking to prohibition in this Court (hereinafter “Dr. referred to as Wil- ceeding 13, court’s June of the circuit enforcement Pharmaceutica, son”). Petitioner Janssen 26, 2006, 2006, this Court On October order. subsidiary petition- wholly-owned ais deny a rule to show cause. We now granted (hereinaf- Corporation & Johnson er Johnson the wilt. “Janssen”). as collectively referred to ter manufactured and distribut- Propulsid® was II. prescribing In addition to by Janssen. ed provided Dr. also Mrs. OF REVIEW Propulsid®, Wilson STANDARD samples of the Gellner this Court This case is before provided to samples had been drug, which prohibition. petition for a writ Janssen’s by representatives Janssen. Dr. Wilson court from prevent a lower asked to When day suddenly on the third died Mrs. Gellner entered, this Court enforcing an order it has began taking Propulsid®.3 after she to determine whether the order reviews ruling. so committed error 17, 2001, court has estate lower May Mrs. Gellner’s On extraordinary remedy of Estate”), (hereinafter a For an award “the referred as case, particular in a proper prohibition to be herein, products filed a liabili- respondent however, improper actions allegedly against Janssen malpractice action ty/medical more than a court must constitute Mar- the lower Circuit Court of Dr. and Wilson “ pro- ‘A writ of 26, simple abuse of discretion. August County, Virginia.4 On West shall and due to other which she suffered tions from “a 1. Under taking. Additionally, Jans- was medications she from is excused 'manufacturer at trial will be able to establish avers that it product when the sen receives the who each Wil- adequate to Dr. provided prescribing properly warns the ” hand, Wilson, expects to on the other dangers.' Dr. product's In re Nor son. physician of the physicians, Litig., establish that Janssen's Contraceptive plant Prods. Liab. consumers, adequate. (E.D.Tex.2002) were not (citing well as to F.Supp.2d Porter Ethicon, Inc., (5th 183 F.3d field omitted). Cir.1999)) (additional citation against various claims Estate has asserted 4. The Janssen, liability, breach of include strict warranty, implied warranty, express breach of Propulsid® the brand name negli- deceptive practices, statutory claim cisapride. negli- claim of gence, an additional as well as gence against Wilson. Dr. will show that the evidence 3. Janssen contends prescribed Propulsid® have been should not filed. subsequent order was written 5. No medical condi- due to various to Mrs. Gellner prevent simple hibition Syl. pt. Sanders, will issue State ex rel. Caton v. abuse of discretion a trial court. It Syl. will pt. W.Va. S.E.2d 75. See also (“ id., juris issue the trial court no determining where has ‘In grant whether to having jurisdiction diction or such exceeds its rule to prohibition show cause in when a legitimate powers. Va.Code, W. acting jurisdic 53-1-1.’ court is not in excess of its Syllabus point 2, tion, State ex rel. Peacher v. this Court adequacy will look to the Sencindiver, 160 W.Va. 233 S.E.2d 425 other appeal available remedies such as (1977).” Syl. pt. economy State ex rel. to the over-all money Caton v. of effort and Sanders, among litigants, lawyers courts; 215 W.Va. 601 S.E.2d 75 howev er, this Court prohibition will use in this

discretionary way only substantial, to correct clear-cut, legal plainly in errors parties contraven proceeding dо statutory, constitutional, tion of a clear or not claim that jurisdic the lower court lacked common law mandate which be resolved it 13, when entered its order June independently any disputed only facts and Rather, Janssen contends that in cases high probability where there is a legitimate powers lower court exceeded its that the trial completely will be if reversed by refusing apply the learned intermedi the error is not Sylla corrected advance.’ ary doctrine to rule in its favor. When it is 1, Black, point 112, bus Hinkle v. 164 W.Va. claimed that court lower has acted be (1979).”). 262 S.E.2d 744 pro We will now yond legitimate powers, many we consider apply ceed to this standard to review the factors to ascertain granting whether ex ruling. lower court’s traordinary through prohibition relief is war ranted. III. determining “In whether to entertain

and prohibition issue the writ of for cases DISCUSSION involving jurisdiction an absence of but original juris The issue raised in this only it where is claimed that the lower diction action impression. is one of first tribunal legitimate powers, exceeded its order to prohibition decide whether should (1) this Court will examine five factors: prohibit lie in this ease to the circuit court party seeking whether the the writ has no refusing from apply the learned intermedi adequate means, other ap- such as direct ary doctrine, we must examine that doctrine (2) peal, relief; to obtain the desired and determine adopted whether it should be petitioner damaged whether the will be or into the Virginia. common law West prejudiced way in a that is not correctable intermediary “The learned pro doctrine (3) appeal; on whеther the lower tribunal’s exception an vides impos rule clearly order is erroneous as a matter of ing duty on manufacturers to warn consum (4) law; whether the lower tribunal’s order products.” ers about the risks their In re repeated is an oft error or per- manifests Norplant Contraceptive Litig., Prods. Liab. disregard sistent procedural either (E.D.Tex.2002) 795, F.Supp.2d 215 (citing 803 law; substantive and whether the lower Labs., Reyes Wyeth 1264, v. 498 F.2d tribunal’s order important raises new (5th Cir.1974); Sterling Drug, Inc. v. Cor problems or issues of impres- law of first nish, (8th 82, Cir.1966)). 370 F.2d sion. general guidelines These factors are learned doctrine stands that starting serve as a useful point for proposition determining discretionary whether a writ prohibition Although should issue. all “manufacturer is excused from satisfied, five factors need not be is clear each who receives the factor, that the third existence of clear when the properly law, error as a matter of given should be prescribing physician warns the of the weight.” Syllabus substantial point product’s dangers.” See v. Porterfield State Berger, Ethicon, Inc., (5th ex rel. Hoover v. 199 W.Va. 183 F.3d 467-68 Cir.1999) 483 S.E.2d 12 (citing Alm v. Aluminum Co. of (Tex. America, to con court and federal circuit court cases 717 S.W.2d 1986)). states, Hence, forty-eight District of Co manufacturer’s clude dangers applied consumers about lumbia and Puerto Rico have either to warn doctrine, only recognized extends of its learned Vi same); prescribing reflecting or healthcare providing chart Co., Upjohn a “learned intermedi tanza provider, who acts as 257 Conn. 379 n. and the ary” (finding the manufacturer n. between 778 A.2d responsi adopted forty-four jurisdictions ultimate consumer assumes have advising doctrine, bility including individual learned drug. apply with the risks associated state courts and federal courts lower Larkin v. number); ing in that state law (addi- Norplant, In re F.Supp.2d at 803 Pfizer, n. 153 S.W.3d 3 and omitted). tional citation accompanying (Ky.2004) (observing text suggested Some authorities thirty-four specifically adopted states have having jurisdictions adopted number relying but majority, overwhelming but doctrine is courts). decisions of some lower state those authorities have either included lower markedly yielded Our own research has decisions, jurisdictions or have included court Considering different result. decisions applying state where federal circuit courts courts, highest find that a state we have concluded that the doctrine would law See, twenty-one e.g., Norplant, In re expressly adopted. 215 mere states have be intermediary (including adopted the learned doctrine.6 F.Supp.2d at 806-09 lower state Labs., sumer, Smith, weighs against potential & 447 the benefits the 6. See Stone v. Kline French 1301, (Ala. 1984) (answering dangers deciding So.2d 1303 affirma whether to recommend the tively question (internal Court certified from United States drug patient’s the cita to meet needs.” asking Appeals for Eleventh Circuit whether omitted)); Synthes, tions 252, 253, McCombs v. 277 Ga. warning drug “adequate manufacturer] to [from 594, (2003) (applying S.E.2d 595 587 prescribing physician, the but not to the ultimate context, in a medical device but doctrine consumer, law”); sufficient as a matter of [was] stating intermediary "[u]nder the learned Co., 1189, ‍​​​‌‌​‌‌​‌‌‌​‌​‌​‌​​​​‌‌​‌​​‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‍(Alas Upjohn P.2d 1200 Shanks v. 835 doctrine, prescription drug the manufacturer of a 1992) ("In determining adequacy ka duty or medical device does have a to warn not warnings typical directions in the context of patient dangers prod involved with the the uсt, drugs, appropriate prescription it is for the trier duty patient's but instead has a to warn the di that the of fact to consider doctor, intermediary be who acts as a learned physi prescribing were directed to rections (em patient tween the and the manufacturer” (footnote patient.” than to the omit cian rather added)); Hosp. phasis Michael Reese & Kirk v. Co., 33, 44, ted)); v. & 305 Ark. 806 West Searle Ctr., 507, 519, 944, 117 Ill.2d 111 Ill.Dec. Med. 608, (1991) (concluding "appli S.W.2d 614 950, 387, (1987) ("[W]e N.E.2d 393 believe 513 intermediary appro rule cation of the learned is intermediary applicable the learned doctrine is contraceptives”); priate in the case of oral Ste duty part of here and that there is no on the Co., 51, 65, Parke, 9 Cal.3d 507 vens v. Davis & drugs directly prescription manufacturers of 45, ("In 653, 661, Cal.Rptr. P.2d 107 53 5, Syl. patients.”); pt. part, v. Humes prescriptions, adequate ‘if the case of medical Clinton, 590, 246 Kan. 792 P.2d 1032 drug warning potential dangers of a has been ("Manufacturers drugs prescription have a doctors, drug given duty by there is no dangerous duty effects and risks to warn of side warning that the reaches manufacturer to insure drugs. The associated with the use of such patient drug pre whom the is the doctor's however, rule, ’ relieves learned (citations omitted)); Upjohn v. scribed.” Co., Vitanza duty patients di manufacturers of the to warn 365, 373, 829, 778 A.2d 835 257 Conn. Inc., Pfizer, rectly....”); S.W.3d Larkin v. 153 (2001) ("We inter conclude that:... the learned 758, (recognizing (Ky.2004) "we now 770 ...."); mediary part our state law doctrine is (Third) of Torts: Products Restatement 398, Lacy G.D. & Co. 567 A.2d 400 v. Searle 6(d) possible Liability (duty § side to warn of 1989) (Del. context, prescription (applying LID in device adequate given to effects satisfied if plainly stating apply in that it would but subject excep pаtient’s provider, health care context); drug prescription Felix v. Hoffmann- tions)”); Labs., Fortenberry, Wyeth v. 530 Inc. 102, 1989) LaRoche, (Fla. Inc. 540 So.2d 104 688, ("We (Miss. 1988) hold that the So.2d 691 (acknowledging manu that "it is clear that the duty adequately manufacturer has a dangerous duty facturer’s to warn of Accutane's any prescribing physician of known warn the physician directed to the rather side effects was might its result from use of pre adverse effects patient.... This is so because the than drugs.... general prescription is ‘that The rule scribing acting physician, as a 'learned interme concerned, man- prescription diary’ the con- where between the manufacturer and 468 state, Carolina, highest North The of six other states have In one additional courts statute. See by adopted doctrine been has favorably in either referred to the doctrine 99B-5(c) (1995).7 Thus, N.C. Gen.Stat. dicta, adopted or have it in a context other jurisdictions recognizing the total number of but, prescription drugs; they than either deci-

learned expressly adopted respect prescrip- statute, only highest sion of the court or is drugs.8 twenty-two. 1027, (1980), duty physi recognized by ufacturer's to warn extends to A.2d 1029 as Slase ” (citation 3, omitted)); 537, laymen.’ Myers, Pa.Super. n. cians and not to man v. 545 455 Sons, R., 199, 206, 1213, (1983); Squibb Upjohn Hill v. & E. 181 Mont. A.2d 1218 n. 3 Pittman v. 1383, (1979) ("As Co., (Tenn.1994) ("The Up 592 P.2d S.W.2d rule, duty john of a manufacturer to warn of Company’s and instructions to dangers inherent in a prescribing physicians were sufficient to dis adequate warning given phy charge satisfied if duty persons its it owed those whom it.”); prescribes warn.”). v. sician who Freeman duty Hoffman- Roche, 552, 571, La 260 Neb. 618 N.W.2d Supreme Oregon adopted Court of has (2000) ("We 6(d) adopt § of the Third respect doctrine with Accordingly, apply we Restatement. negligence claims. See McEwen v. Ortho Pharm. case.’’); intermediary doctrine to Freeman’s 375, 386-87, Corp., 270 Or. 528 P.2d Schneider, Niemiera Niemiera v. 114 N.J. (1974) ("Although duty of the ethical (1989) ("In 555 A.2d New Jer doctor, manufacturer is to warn the rather than elsewhere, sey, accept proposition as we patient, the manufacturer is liable to generally pharmaceutical a charges dis duty.”). for a breach of such Howev its to warn the ultimate user of er, Oregon Legislature rejected applica drugs by supplying physicians with liability. drug's dangerous tion in the context of strict propen See information about the Griffith Blatt, 456, 467, concept 334 Or. 51 P.3d sities .... This intermediary’ is known as the 'learned (2002) ("Neither rule because the acts the text nor the context of those legislature between the manufacturer and statutes indicates that the intended to (internal omitted)); potential citation consumer.” Mar relieve a seller from strict lia Hacker, 1, 9, tin v. 83 N.Y.2d bility 628 N.E.2d adequacy basis of the of a manufac 1311, (1993) ("Warnings N.Y.S.2d product warnings intermediary turer's to another drugs physi contrast, (here, for cian, are intended for the physician). By the section 402A duty against whose it is to balance the (Second) Torts, risks of the Restatement referred to drugs the benefits of various and treatments and 30.920(3), legislature in ORS indicates that the prescribe supervise to them and their effects. protection intended to create no such from strict physician The acts as 'informed intermedi liability.”). ary' pa ... between the manufacturer and the tient; and, thus, duty the manufacturer's to cau jurisdictions adopted 7. Three other have statutes against drug's tion side is fulfilled effects doctrine; reflecting intеrmediary the learned giving adequate warning through prescribing the 1—63(c)(ii) Mississippi, see Miss.Code Ann. 11 — (cita physician, directly patient ....” (2002); Jersey, New see N.J. Ann. Slat. omitted)); Syl. pt. Seley tions v. G.D. Searle & Ohio, (1987); § 2A:58C-4 see Ohio Rev.Code Co., (1981) 67 Ohio St.2d 423 N.E.2d 831 2307.76(c) 1987). (West §Ann. reflected in As ("A manufacturer of ethical satisfies its footnote, preceding the in these three states the duty to warn of risks associated with use of the recognized judicially. doctrine has also been product by providing adequate warnings to the profession medical user."); and not to the ultimate Peebles, 287, 304-05, v. See 78 Hawai'i Craft Moore, (Okla. McKeev. 648 P.2d (1995) (adopting 893 P.2d learned 1982) ("The duty manufacturer's warn the to implants); rule for silicone breast prescription drugs, ultimate consumer of or de Corp., MacDonald v. Ortho Pharm. 394 Mass. vices, distinguished directly as from those sold (1985) (rejecting 475 N.E.2d 65 learned consumer, advising prescrib the limited is intermediary doctrine in context of oral contra ing treating physician drug's or of the or device's ceptives, indicating but in dicta that it would dangers potential contrary in the absence of FDA context); prescription drug in warned, regulations. physician Once the is (Mo. Krug v. Sterling Drug, 416 S.W.2d 143 duty explain choice of treatment and the 1967) (addressing (footnotes only issue of whether physician.” risk is incumbent on the omitted)); 263, 288, properly physician, Incollirigo manufacturer had warned Ewing, as v. 444 Pa. ("Since (1971) presented, quoting was the issue but 282 A.2d was dicta); favorably only upon prescription duly available li doctrine Alm v. Am., (Tex. physician, warning required censed Aluminum Co. 717 S.W.2d 588 is not to 1986) general public patient, (commenting favorably about learned in but to the doctor.”), prescribing abrogated grounds termediary doctrine in оn other dicta in case that did not Bolubasz, 561, 566, Jones, prescription drugs); Pfizer, 491 Pa. involve Inc. v. Kaczkowski hand, highest ships. On the other example, Supreme courts of For Court of states, Arizona, Washington explained remaining twenty-two has Colorado, Idaho, Indiana, Iowa, Louisiana, reasons for this rule should be [t]he Maine, Minnesota, Maryland, Michigan, Ne- product obvious. Where a is available vada, Mexico, Hampshire, through New North New the services of a Dakota, Island, Carolina, physician, physician acts a “learned Rhode South South intermediary” Dakota, Vermont, Wisconsin, between the manufacturer Virginia, West patient. or seller and the It is his Wyoming, adopted have not the learned qualities inform himself and charac- Likewise, intermediary doctrine. the Dis- products pre- teristics of those he trict of Appeals Columbia Court of and the scribes for or administers to or uses on his Supreme Court of Puerto Rico have not patients, independent and to exercise an adopted the learned doctrine. judgment, taking into account his knowl- Thus, widely applied while the doctrine is edge patient product. as well as the courts, among high lower the number of and, expected The is can be expressly courts who have followed suit and presumed, place primary does reliance adopted admittedly in the while judgment. physician de- majority, up overwhelming do not make cides what facts should be told to the majority that suggested by has often been Thus, patient. properly if the courts commentators. necessary labeled and carries the instruc- Among fully primary justifications apprise tions and prоper procedures been advanced for use (1) involved, dangers and the the manufactur- difficulty doctrine are manufacturers may reasonably physi- er assume that the would in attempting provide encounter cian judgment will exercise the informed warmings prescrip- to the ultimate users thereby (2) gained conjunction with his own drugs; patients’ reliance on their independent learning, in the best interest treating physicians’ judgment selecting ap- patient. It suggested has also been (3) propriate prescription drugs; the fact necessary by that the rule made the fact physicians pro- it is who exercise their ordinarily that it is difficult for the manu- judgment selecting appropriate fessional facturer to communicate with the drugs; physicians the belief that are in consumer. position provide appropriate the best patients; Co., to their the con- Terhune v. A.H. Robins 90 Wash.2d (1978) (footnote 14, 975, cern that direct to ultimate users 577 P.2d 978 omitt ed).9 doctor/patient would interfere with relation- 681, 684, (1980) directly patient. 221 Va. 44 272 S.E.2d to warn each Third, (addressing drug imposition duty issue of whether manufactur- of a to warn the user physician adequate, relationship er's to had been would interfere with the be (citations referring favorably intermediary patient.” but to learned tween the doctor and the dicta); Co., omitted)); Reitz, Cal.App.3d doctrine in Terhune v. A.H. Robins 90 Carmichael v. 17 (1978) 958, 989, ("The (1971) (adopting Cal.Rptr. Wash.2d 577 P.2d 975 95 400-01 respect doctrine with of the [learned doctrine] rationale device, '(1) probable medical but discussion The indicates is: doctor is intended to be an interven context). adoption prescription drug ing party in in the full sense of the word. Medical practice ethics as well as medical dictate inde Co., 33, 42, pendent judgment,

9. See also West v. Searle & 305 Ark. the manufactur unaffected (1991) ("There control, (2) part 806 S.W.2d are a num- er's on the the doctor. Were arguments supporting application patient given complete highly ber of and to be exception prescription drug products. possibility technical information on the adverse First, They physician drug, be summarized as: associated with the use óf the he would it, prescribe drug, patient upon way must limited relies have no understanding might actually object to evaluate and in his physician's judgment selecting drug, to the he use patient physician's drug, thereby jeopardizing and the life. It relies advice his using drug. say virtually impossible That is to there is an would be for manufacturer independent warning, comply medical decision the learned in- with the of direct as (Rhein termediary appropriate. way patient.’ that the is Sec- there reach the is no sure ond, virtually many impossible gold, Liability Drug it is cases for a Products Ethical Manu- — The added).... (emphasis justifications for the learned Id. at 538 We find these largely to be outdated doctrine Corp., F.Supp. Odgers v. Pharm. Ortho outset, At the we note unpersuasive. and (E.D.Mich.1985). n. 12 not doctrine is that the learned actually in which a court The first instance Rather, origins may its a modern doctrine. duty to concluded that a manufacturer’s as 1925. be traced as far back warnings to a by providing was satisfied that the manu- first intimations One of the physician the 1948 case of prescribing duty to the ultimate consumer facturer’s Pharms., Specific 191 Misc. Marcus v. in the case of be limited would (N.Y.Sup.Ct.1948).10 Mar 77 N.Y.S.2d 508 Parke, Davis drugs is found Hruska against pharmaceuti ‍​​​‌‌​‌‌​‌‌‌​‌​‌​‌​​​​‌‌​‌​​‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‍ cus an actiоn involved (8th Cir.1925). Co., & 6 F.2d 536 of a company cal to recover for the death court, holding that the manufacturer while ad thirteen-month-old child who had been despite lack of to the consumer was liable dose larger-than-recommended ministered a privity, stated manufactured prescription suppository of a Pharmaceuticals, defendant, Specific public “The defendant deals with drug compa granting Inc. In the defendant preparations its and

be treated with ny’s complaint, the motion to dismiss the footing, drugs, equal an but with not on Marcus court stated: understanding public will trust intelligence and is difficult to see on basis this superior [I]t what defendant, agents plaintiff. be liable to It knowledge of its defendant can prep- representation plaintiff, no nor did employees, in the manufacture and made also, plaintiff having it products; when its hold out its aration any physicians compounds, drugs, preparations properties are whatsoever. To market, safe, they representations. And should placed on the did make any might be claimed and beneficial in use. In other of these be false it harmless words, they public propriety relies on the truth of were made for the advertising But employed in benefit of the ultimate consumers. such statements defendant, claim. claim is by the and does not seek there is no such The sole from, regarding misrepresentation or even conceal- expert advice others ment, negligent give the use the commodities but a failure to ade- propriety of information, placed quate and in instances a has some manufactured defendant adequate to call atten- the market.” failure use means ' ”); Pfizer, Liability Rutgers susceptibilities.” ... 18 L.Rev. Larkin v. facturer's (footnote ("Three 947, 987.).” omitted)); Lacy (Ky.2004) v. G.D. S.W.3d basic ra- (Del. 1989) ("A Co., support A.2d articulated to Searle & tionales been patient obviously prescrip is unable to obtain a that the rule. The first best rationale is physician prescribing position it. physician superior ... unless his orders is in a seeking physician indepen- with a impart provide When a consults and can device, pa or restricted dent medical decision as to whether use of the expects his in tient also to use appropriate particular for treatment of a judgment pa independent formed to advise the patient.... The rationale for the rule is second appropriate prescribe use tient and to the most com- that manufacturers lack effective means to device, drug professional on his of the or based directly patient.... municate with each The analysis judgment. physi In final it is the the imposing third for the rule is that a rationale ultimately drug prescribes de cian who the or duty upon the manufacturer would un- to warn Thus, prescription vice. if the manufacturer of duly physician-patient the relation- interfere with legally products provides physician with the (citations omitted)). ship.” information, duty appropriate it has satisfied warn.”); Pfizer, Synthes, 762. 10. See Larkin v. 153 S.W.3d McCombs v. Ga. ("The (2003) ("The originated intermediary] rule in [learned rationale 587 S.E.2d Pharmaceuticals.”); Specific Odgers intermediary] v. that the Marcus v. [learned doctrine is Corp., F.Supp. position 873 n. 12 treating physician Ortho Pharm. is in a better manufacturer, (E.D.Mich.1985) ("Apparently report patient in that the eаrliest than the " actually employ prescription ed held that the manufactur [or medication case ‘decision to adequate duty warn professional er's to warn is fulfilled assess devices] medical involves ings given prescribing physician light physician's is Marcus in of the ment of medical risks Pharmaceuticals."). Specific knowledge patient's particular and v. of a need given. Significant changes tion to the information It be ed. the drug industry safely allegations that conceded these post-dated adoption of the learned be if the would sufficient sold were majority doctrine in the of public generally drug to the as a for which states in which it is followed. We refer physician’s necessary. prescription no was specifically to pro- the initiation and intense alleged The is materially situation differ- of liferation advertising, direct-to-consumer ent. There reason to that a is no believe along impact physician/patient with its on the disregard would care his own relationship, development and the of the in- knowledge of the of drugs effects and ternet as a of dispensing common method administered, quantity hence of the to be obtaining drug and prescription informa- judgment and his substitute for own tion.12 any of a manufacturer. Nor is there if expect reason to a When doctor did choose doctrine 2'ely given developed, on the information the was direct-to-eonsumer advertis- prescribe manufacturer he would without ing prescription utterly drugs was un- knowing In what information was. “Historically, prescription drug known. ad- any grounds such absence for belief vertising in the United States was directed negligence. there would be no primarily prescribers, were who once the choosing 191 Misc. at 77 N.Y.S.2d at sole prescrip- 509-10.11 decision-makers when The Marcus court clearly significance found tion medications.” B. Palumbo Francis & C. representations in the fact that no Development had been The Mullins, Direct- Daniel directly plaintiff by made to the defen Prescription Drug Advertising to-Consumer degree, large dant manufacturer. To a Regulation, L.J., Drug 57 Food & a in world where medicine is See also Ozlem A. Bordes, The widely advertised, such situation is becom Intermediary Learned Doctrine and Direct- ing increasingly rare. Advertising: to-Consumer Should the Phar- learned maceutical Be Shielded We note lengthy history Manufacturer from very age Liability?, Mercy 81 U. doctrine because the Det. L.Rev. 2004) requires pause (Spring (“Originally, pharma- doctrine us to engage thorough examination, in a physi- even ceutical manufacturers advertised to though accepts widely the doctrine has been journals phar- cians via medical or Moreover, intermediary” 11. actual term "learned was side effect. in this case we are applied dealing first to the doctrine 1967 in the case of with a rather than a Cornish, (8th Sterling Drug normal consumer such a 370 F.2d Cir. item. case the 1966). purchaser's Sterling doctor is a learned produced involved purchaser between manufacturer. condition that resulted blindness in a small properly possibil- If the doctor is of the percentage warned of those individuals it. 370 who used ity patients, aof side effect in some F.2d at 83-84. Maxine Cornish was a member symptoms normally accompany- of the advised percentage, Sterling of that small and shе sued effect, ing side an there is excellent chance Drug alleging company that the knew should injury can be avoided. This negligently have known side of this effect and injury particularly place true if the takes doctors, doctor, including failed to warn her own injury slowly, ques- as is the case properly drug. monitor users of the Id. at 84. Therefore, given tion here. reasons trial, prevailed Sterling ap Ms. Cornish at denying liability in other cases do not exist alia, pealed arguing, that the had inter trial court We here. believe the court's instruction was improperly jury Sterling instructed that if law. accurate statement of the group “knew or should have known that a Id. at 85. effects, persons [Sterling] rare would suffer side profession had a to warn medical of the study percent “[O]ne shows that susceptibility hypersensitive idiosyn such regularly 40.6 million adults who use Inter group.” Appeals ultimately cratic Court The ” topics.’ net search for health-related Patrick Cornish, affirmed the verdict in favor of Ms. Comment, Cohoon, Question to the An Answer respect commented with to the notice that issue Why Abrogate Time Has Come to Learned [i]n the there evi- Intermediary instant case was sufficient Rule in the Case Direct-to-Con jury appellant Drugs, dence for the to find did in Advertising Prescription 42 sumer S. know, foreseen, 2001) (citation (Fall fact could have thus Tex. L.Rev. ted). 1352 omit persons injured drug's some would be 472 prescription drug The Direct-to-consumer ad- representatives.

maceutieal fairly develop- vertising has been a recent brand name public less aware of what was market.”). prescription drug “The ment. first U.S. one court As on were to the consumer print advertisement directed observed, aptly has Mullins, & issued 1981.” Palumbo was medical-legal jurisprudence [o]ur & 424. supra, Drug 57 Food L.J. at There- images of care that no on health based after, time, medical At an longer exist. earlier Drug & Adminis- [Food [i]n doctor’s office was received in the advice guidelines issued draft intended tration] likely made physician who most from a regarding supplement regulations usually calls if needed. The house guide- These broadcast advertisements. money to the doctor. paid a small sum rapid proliferation led to a of a lines pharmacists compounded Neighborhood newer, more informative broadcast adver- being pejo- medicines. prescribed Without tisement, allowing the manufacturers rative, say prevailing it is safe product both the name and indica- include that the attitude of law medicine was guidelines The tion. recommended Logan v. knows best.” Greenwich “doctor provide a manufacturers means for Ass’n, 282, [290,] 465 A.2d Hosp. 191 Conn. consumers to obtain more information (1983). 294, 299 address). (e.g. page an Internet Web ad- Pharmaceutical manufacturers never Newton, Prescrip- Moore & Patrick Michael but products patients, their vertised Drug Advertising on the Internet: A physi- all rather directed sales efforts at. Proposal Regulation, 2 Va. J.L. & W. setting, the comforting In this law cians. ¶3 (Feb. 1998) 1.1, (emphasis Tech. add- exception traditional created an (footnote ed) omitted).13 See also & Palumbo di- consumers of manufacturers ‍​​​‌‌​‌‌​‌‌‌​‌​‌​‌​​​​‌‌​‌​​‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‍Mullins, supra, Drug 57 & L.J. at 423 Food rectly of risks associated with (“[R]ecent changes Drug ... in the Food and they provid- long health-care as warned guidance ... Administration’s —introduced of those risks. ers opened 1997 and finalized in 1999—have ill, changed. good or that has all For (em- plethora door to a advertisements.” pro- large are in measure Medical services added)).14 Indeed, phasis it has been ob- managed organizations. care vided “drug spent manufacturers have served pm-chased pharmacy in the Medicines are money on more direct-to-consumer advertis- supermarkets and often department of ing years advertising last than on few Drug- paid third-party providers. Bordes, supra, 81 U. Det. to doctors.” Mer- manufacturers now advertise cy (citing Ohliger, at 268 Paula C. L.Rev. radio, products to on the televi- consumers Advertising Liability DTC and the Potential Internet, sion, public on billboards Trends, Manufacturers, Drug Benefit of 11(8):39 transportation, magazines. (1999)). —40 proliferation 734 the 1997 Wyeth Perez Labs. 161 N.J. Since adver- 1245, 1246-47 adopted tising, high four courts have A.2d at $156 article is on the internet 1992 million This available (last http://www.wvu.edu/~law/wvjolt/ $166 visited 1993 million 2007). $242 1994 million June million $313 1995 $595 1996 million 14. The massive increase in direct-to-consumer $844 1997 million advertising years striking. One com- in recent $1.17 billion provided following table track- mentator has $1.58 billion direct-to-consumer, DTC, ing spending $2.24 billion year year spending 2001: from the 1989 to $2.38 billion Spending Year DTC Mullins, Development & Palumbo Direct- Prescription Drug Advertising Regu- $ to-Consumer lation, 12 million (footnotes Drug 57 Food & L.J. at 423 $48 million omitted). $ 56 million Moreover, industry critics of DTC ad- See Vitanza doctrine. learned argue Co., vertisements that advertise- A.2d 829 257 Conn. Upjohn v. relationships doctor-patient distort ments (2001); Synthes, 277 Ga. McCombs actually pre- may the use of and increase Inc., (2003); Pfizer, Larkin v. 587 S.E.2d drugs. scription They also believe that (Ky.2004); Freeman v. 153 S.W.3d 758 Hoff drug advertisements are created to sell Inc., Roche, 260 Neb. man-La inadequate products and thus are sources deciding to N.W.2d 827 poor information and substitutes intermediary doctrine, none of those argue medical advice. Critics also that gave thorough to the courts consideration do not advertisements discuss other medi- prescrip changes that have occurred in the cations, alternative treatments and the wis- industry respect with to direct-to- Furthermore, nothing. doing these dom however, advertising. We, find consumer diagnose are advertisements unable changes significant to be a factor such may All these create a ailment. factors issue, impact deciding especially di patient misinformed whom advertising had on the rect-to-consumer has to educate. have will relationship. Larkin v. physician/patient See advertising gen- Studies show DTC (Winter Pfizer, S.W.3d 770-71 patient erates an increased load and often (“This sheimer, J., dissenting) should Court physicians spend more time re- causes abundantly notice of the obvious fact take viewing specific the benefits risks of a and development of direct to consumer patient explaining with each brand indelibly pharmaceutical advertising has formulary patients restrictions re- when changed physician/patient the realities of re quest a brand that the health is outside Anyone lationships. television who watches drug formulary. may plan’s This be regularly variety bombarded with patient potential time for both the waste products suggest that pharmaceutical which physician, their discussion and the because physician to the ultimate consumer ask his formulary little effect on rules. will have prescribe particular product.”). advertised may doctor-patient relationship suffer physicians justify must decisions when Opponents of direct-to-consumer advertis- concerning they patients following arguments made the re- ing have Physicians prescribe. also believe that will impact advertising on the garding the such superficial misleading advertisements relationship: physician/patient inappropriate pa- create unreasonable or increasing- [P]hysicians they state expectations for product tient effectiveness pressured ly patients their asked inappro- patients request lead and often prescribe drugs patient has seen that the priate products for their medical needs. example, For the diet advertised. Terzian, Note, V. Direct-to-Consum Tamar fen-phen pre- combinations known as was Drug Am. Prescription Advertising, 25 er despite scribed little hard scientific evi- (footnotes & Med. 157-58 J.L. Physi- potential of its dence side-effects. omitted). Bordes, supra, 81 U. Det. See also prescribing the cians are under attack for (“Today, still Mercy L.Rev. at doctors readily inappro- often and pills too too patients argue relationship that their with patients. Physicians argue that it is priate advertis undermined direct-to-consumer fault; rather, they pushy their claim They demand a ing. claim advertisements, prodded by patients, DTC television, drug they or in a particular saw on wheedled, pressed, begged and berated Additionally, magazine. the advertisements treatments_Physicians quick them lay self-diagnoses encourage people make compete it is complain impossible symptoms and by listing suggesting the view cоmpanies’ massive pharmaceutical can the condition that the er treat_ advertising budgets, resign themselves says that direct-to- [One doctor] enough advertising fact that if make more con to the consumers created consumer ‘has noise, they patient and the eventually will relent flict doctor between the doctor is seen as a barrier pressure. where 474

drug patient says ies, the ... wants.’ Prescription Drugs, [Another] and Patient In- requested if a doctor feels that formation, 30 St. U. Louis. L.J. 652 right patient, (1986)). is not doc- credibility issue, tors find their at not the Second, managed because care has re manufacturer. She also adds that insurance per patient, duced the time physi allotted companies not cover considerably cians have less time to inform drug patient physician that the wants. The drug. of the risks and benefits of explain must then to the it Sheryl Gay Stolberg, Faulty Warning La plan. patient may covered The ask Prescnption Dmgs, bels Add to Risk in petition get the insurer to Times, 4, 1999, N.Y. June at “In A27. covered, drug can waste valuable 1,000 survey 1997 patients, the F.D.A. (footnotes omitted)). time.” found that one-third had in received rejecting application of the learned formation from their doctors about drugs doctrine to that had been dangerous drugs they side effects were subject advertising, direct-to-consumer taking.” Ibid. Supreme Jersey Court of opined, New Third, agree, advertising having and we that such spent obviates on billion adver- $1.3 each premises upon tising of the which the doctrine ... drug manufacturers can hardly rests: be said to “lack effective means to (1) Noah, premises: patients,” communicate These reluctance tо under- (2) supra, 32 patienLrelationship; mine the doctor Ga. L.Rev. at when their advertising campaigns pay absence the era of can “doctor knows best” off in close patient’s consent; of need for the to billions in informed dividends. (3) inability manufacturer to com- advertising phar- Consumer-directed (4) patients; municate with complexity maceuticals premis- thus belies each of the (with subject; possible are all es which the learned doc- last) exception of the absent in the direct- trine rests. advertising to-consumer of prescription First, the fact that manufacturers are drugs. advertising their and devices to First, with rare and excep wonderful “ suggests consumers that consumers are tions, the ‘Norman image Rockwell’ participants active in their health care family longer doctor no exists.” [Lars decisions, invalidating concept that it Noah, Advertising Prescription Drugs to doctor, is the patient, not the who de- Consumers: Assessing Regulatory cides whether a or device should be Issues, Liability 32 Ga. L.Rev. 180 n. Second, illogical used. requir- (1997)] (citing 78 Rheingold, Paul D. The ing provide manufacturers direct Expanding Liability Drug Manu warnings to a consumer will undermine Consumer, Drug 40 Food facturer patient-physician when, relationship, (1985)). Cosm. L.J. 136 Informed very nature, requires consumer-directed patient-based consent decision advertising encroaches on that relation- paternalistic rather than the approach of ship by encouraging Rothman, consumers to Largey the 1970s. See ask v. 110 204, 206, (1988) (discuss products by N.J. advertised name. Final- A.2d 504 ly, ing advertising consumer-directed Canterbury Spence, rebuts 464 F.2d 772 (D.C.Cir.), denied, the notion that prescription drugs cert. 409 U.S. (1972)). potential S.Ct. devices 34 L.Ed.2d and their adverse ef- complex decision to take a fects are too exclusively effectively is “not to be matter for judgment.” lay medical communicated to See Teresa consumers. Be- Schwartz, Moran requires Consumer-Directed Pre cause the FDA prescrip- scription Drug Advertising advertising carry and device Rule, Intermediary Learned warnings, may reasonably Food the consumer Drug Cosm. L.J. (citing presume guarantees that the advertiser Margaret Gilhooley, adequacy Thus, Learned Intermediar- warnings. of its (1985); contraceptive ultimate de L.Ed.2d law common Laboratories, vices; apply. Hill v. Searle [884 should consumer (8th Cir.1989)]; (4) 1064, F.2d 1070-71 Comment, Casey, Laying A. [Susan consumers; directly to drugs advertised Challenging Doctrine Rest: an Old Laboratories, Inc., Wyeth Perez v. [161 Interme- Wisdom Learned of (1999)]; (5) 1, 21, 1245, 1257 N.J. 734 A.2d Doctrine, Mitchell diary 19 Wm. Davis, overpromoted drugs; Proctor v. 291 (1993) (footnotes 931, omit- 956 L.Rev. 265, 279-84, 126, Ill.Dec. Ill.App.3d 225 ted).] [1212-16,] [136-40,] 1203, 682 N.E.2d cert. absent, premises as all of its are When 725, denied, 553, 175 Ill.2d 228 Ill.Dec. 689 to consumers when direct (6) (1997); N.E.2d 1146 with intermediary mandatory, the learned doc market; from Nichols v. drawn trine, exception an to the manufac “itself Inc., 562, McNeilab, F.Supp. 850 565 consumers traditional to warn turer’s ([E.D.]Mich.1993). any risk associated calculus, drops product, simply out of the Co., 393, Upjohn v. 257 Conn. at Vitanza 778 duty of the to be leaving the manufacturer Bordes, supra, at 846-47. See also 81 A.2d general in accordance with determined Mercy (discussing U. Det. L.Rev. at 270-74 law.” v. Basel principles of tort Edwards doctrine). intermediary exceptions to learned (10th Pharms., 1341, Cir. 116 F.3d 1343 the version the learned intermedi- Even of 1997) (discussing question adequacy of of ary in the Restatement doctrine contained Texаs law patch under nicotine (Third) incorporates foregoing Torts of Pharms., v. 933 in Edwards Basel certified exception exceptions including a (Okla.1997))... P.2d 298 where the man- to cover those circumstances Inc., 1, 18-19, Wyeth Perez v. Labs. 161 N.J. physi- or that a ufacturer knows should know Patrick 1255-56. See also A.2d provide position will not be a cian Ques Comment, Cohoon, An Answer warning: adequate Abrogate Time Has Why tion Come (d) prescription drug A or medical de- Intermediary Rule in the Case Learned reasonably safe due to inade- vice is Advertising Pre Direct-to-Consumer of warnings if quate or reason- instructions scription Drugs, S. Tex. L.Rev. warnings regarding able instructions or 2001) (Fall (explaining how each provided are not foreseeable risks of harm intermediary doc the bases for to: longer light trine exist of direct-to- no (1) other health-care prescribing and advertising). consumer position to providers who are in a reduce Many jurisdictions have addressed with the the risks harm in accordance shortcomings of the learned warnings; or or instructions developing exceptions. various doctrine (2) when recognized exceptions [to [C]ourts know or has reason to knows regarding: doctrine] learned providers not be in a will health-care (1) inoculations; Wyeth Davis vaccine the risks harm position reduce (9th Inc., Laboratories, 121, 131 [399 F.2d or with the instructions accordance (2) Cir.1968)]; contraceptives; oral Mac warnings. Corp., v. Ortho Pharmaceutical Donald (Third) 135-36, Products Lia- cert. of Torts: N.E.2d Restatement 394 Mass. (1998).15 6(d), bility § at 145 In Comment e denied, 474 U.S. 106 S.Ct. (Third) pursuant to a health-care distributed of Torts: wise Restatement Section Liability, entirety, provider's prescription. states Products (b) liability purposes under Subsec- For (a) or A manufacturer (a), or medical device who distrib- device sells or otherwise medical sale or if at the time of other is defective drug or device is sub- a defective medical utes device: distribution or medical ject liability persons for harm caused manufacturing defect de- as prescription drug medical contains A or defect. 2(a); § may legally fined in sold or other- is one that be device recognized.” other should Re- the American Law Institute discusses situations be (Third) under direct statement of Torts: Products Liabili- some circumstances e, ty § un- cmt. at 149. been be warranted It has observed 6(d)(2).16 Ultimately, though, that, commentator the Re- der subsection described “[o]ne approach ‘tepid it “leaves to commented statement’s endorse- Institute exceptions developing law whether to ment’ of learned doctrine.” case 14-15, Wyeth these or N.J. at rule in Perez v. Labs. reasonably safe due to defective the risks attendant use of the is not (c); patients. design in or defined Subsection device or to relate them When a to (3) reasonably inadequate supplies drugs safe due prescription not to is manufacturer warnings or in Subsec- patients type unsuper- as defined instructions to in distribution (d). environment, pa- if vised a direct to (c) drug effective, prescription or medical device is A tients is feasible and can the law be reasonably design not safe due to defective if requires measures to that effect. posed drug risks of harm the Although the foreseeable the learned rule is sufficiently great are in rela- or medical device drug generally accepted and manufacturer a therapeutic tion to its foreseeable benefits legal obligation by providing fulfills knowing providers, reasonable health-care warnings provider, adequate to the health-care benefits, therapeutic risks and such foreseeable arguments have been advanced that in two prescribe drug would or medical de- not imposing areas consider other courts should patients. any class of vice for liability drug tort manufacturers fail to (d) drug prescription device A or medical is provide warnings direct to consumers. In the reasonably inadequate not safe due to instruc- first, governmental regulatory agencies have warnings if tions or reasonable instructions or patients informed mandated be of risks warnings regarding foreseeable of harm risks drug. A attendant to the use of a noted exam- provided are to: ple requirement is FDA that birth control (1) prescribing provid- and other health-care patients accompanied by pills be sold to a position in a ers who are to reduce risks of second, package In manu- insert. with the in accordance instructions or harm prescription drug facturers have advertised a warnings; or and its indicated mass media. use in the Gov- patient when the manufacturer that, regulations require ernmental when reason to know health-care knows or has advertised, drugs they are so must be accom- providers position in will not be to reduce panied by appropriate concerning information harm in with the in- risks of accordance provide advertising. so as risk balanced warnings. structions or question in both is whether instancеs ade- (e) A retail seller or other distributor of a warnings quate appropriate health-care drug subject or medical is device provider should insulate drug liability for harm caused or liability. tort from device if: adequate Those who assert the need for time of at the sale or other distribution warnings directly to consumers contend that drug or medical device contains manu- directly manufacturers that with communicate 2(a); facturing § defect as defined in escape liability simply consumers should not (2) at or before the time of or other sale prescribe because decision to was distribution of or medical device the provider. Proponents made health-care other retail seller or distributor fails to exercise that, argue of the learned rule reasonable care such failure causes harm notwithstanding direct communications to the persons. consumer, drugs dispensed cannot be unless a provider health-care individualized makes states in full: Comment e drug appropriate partic- that a decision is for a patient, ular and that it is health-care patients. warnings Warnings e. Direct provider to decide are which risks relevant to regard drugs with or medi- instructions patient. particular The Institute leaves to only pursu- legally cal that can be sold devices developing are, exceptions case law whether ant to a under the "learned rule, rule these or other intermediary” pro- directed to healthcare (d)(2) recognized. should situations be recognizes that di- viders. Subsection When content of the is mandat- patients rect are instructions to apprоved by governmental agency reg- ed dispensed or ad- warranted for are compliance ulation and a court personal finds that with ministered to without the in- regulation federally pro- preempts such tort liabili- tervention or evaluation of a health-care ty, example liability . then no this Section can vider. An the administration of a under governing compliance For the vaccine clinics where mass are attach. rules inoculations governmental performed. many generally, programs, such health- standards see 4(b). providers position care not in a to evaluate harms, A.2d at (quoting knowledge regarding potential Charles J. Walsh al., Intermediary et The Learned Doctrine: and the ultimate consumers who bear the Prescription Drug Labeling, The Correct significant using health drugs, risks those (1994)).17 Rutgers L.Rev. it is not that prescription unreasonable provide appropriate manufacturers should exceptions plethora Given the warnings to the prod- ultimate users of their we ascer ucts. no adopting tain benefit in a doctrine that policy Public require dictates that the adoption manufactur- would the simultaneous er exceptions justly numerous order should warn the ultimate to be user of the harmful particularly pharmaceuticals utilized. This is so our effects of its when since existing comparative person’s law of contribution involves health. The knowl- among joint adequate edge tortfeasors is to ad pharmaceutical goes side effects liability among physicians issues of dress beyond scope well average indi- companies cases pa those where vidual. in warning The benefit the con- injuries tients sue for related the use of sumer far outweighed by prescription drugs.18 though costs. It is not the as manufactur- er must incur costs discover the as risks Furthermore, we that if man- believe they already are known. It is a mat- adequately ufacturers are provide able to ter adding of consumer of the to the list warnings to consumers under the numerous who to warn.... exceptions to the learned doc- trine, they experience early then ... 1980’s, should no sub- Since the direct-to-eon- impediment stantial providing adequate very advertising has boomed into a .sumer general. to consumers in “There is profitable pharmaceutical venture man- question pharmaceutical no manufactur- Yet, exposure ufacturers. consumers’ they very ers believe have effective methods They harm has as a increased result. are to communicate with consumers.” by surrounded various adver- Pfizer, Inc., Larkin v. 153 S.W.3d at 771 print tisements in all of forms and broad- (Wintersheimer, J., dissenting). cast media. Advertisements directed however, consumers,

Finally, supply partial often because is the Additionally, financially incomplete manufacturers who benefit from information. prescription drugs sales of possess self-diagnosis by the and the consumer has result- (Third) Liability Restatement of Torts: Products 18. Petitioner Janssen notes that federal courts 6(d) e, (1998). § applying Virginia long cmt. at speculated law West Virginia that West the would doctrine. See context, In court commented: Perez Med., Inc., F.Supp.2d Ashworth v. Albers 395 (S.D.W.Va.2005); Pumphrey 407 v. C.R. developments Parallel to the market Bard, Inc., (N.D.W.Va. F.Supp. 906 338 ing, the American Law Institute was in the 1995); Labs., Inc., Rohrbough Wyeth (Third) 719 process adopting of thе Restatement of (N.D.W.Va.1989), F.Supp. 'd, 478 916 Liability Despite Torts: .... Products aff Cir.1990). (4th F.2d 970 While federal early exception court provide effort to to the opinions applying Virginia West marketing law are often doctrine in the direct case of of consumers, persuasively, we viewed are not bound pharmaceuticals those the drafters left opinions. Co. North "developing See Ins. Am. v. Ci the resolution of that issue to case Life of chowlas, (Fla.Dist.Ct.App. 659 1340 law.” Id. at 6d e. One So.2d comment commenta 1995) approach ("Opinions tor described the federal courts which Restatement’s as a of inter "tepid pret apply persuasive, endorsement” of learned intermedi and law are Florida but al., ary doctrine. Charles J. Walsh et the courts of are not bound this state such (citation omitted)); Intermediary opinions." Learned Prescription Doctrine: The Coirect Jacobsen v. Farm Co., 375, 381, Labeling, Drug Rutgers 48 ers Union Mut. 320 Mont. 87 Ins. Thus, (1994). (”[F]ederal L.Rev. under the new P.3d applying Court[.]”); court decisions Restatement, "warnings may binding pro have to be Montana law are not on this Contractors, provider Liberty vided to a health-care even to the Garrison Inc. v. Co., depending patient,” (Tex.Ct.App. Mut. circumstances. Ins. 927 S.W.2d 1996) Dreier, (Third) ("Decisions appeals William A. The Restatement of the federal courts of Liability Jersey applying Tons: Products and the New and district Texas law courts are not are, however, Rutgers binding They Together, Quite Law-Not L.J. on this court. re Peifect ” (citation respectful ceived ‘with omitted)). consideration.’ 14-15, 161 N.J. at at 1253. A.2d advertisements, [ejxisting Virginia permits the as West law as well from these ed drugs. for the brand-name patient-demand development and of the claims defens- full general the best interest It is in adequacy method of to the and com- es as duty to have a public mamifacturers municating adopting warnings without side the ultimate user warn effects Intermediary Learned Doctrine. increasingly motivated Courts risks. consumer, require man- protect just phy- than to warn more ufacturers Virginia’s comparative West law as to sician. among tortfeasors will ade- contribution quately address the issues of spend manufacturers Pharmaceutical Wilson, Dr. between They are make millions more. millions to adopting legal concept yet without products their onto pushing Supreme Virginia embraced West Consequently, never before. public like Appeals. Court of protection. need As more consumers times, changing courts response to agree court’s conclusions We circuit shield manufacturer’s have diminished grant grounds upon find no doctrine. prohibition. Accordingly, requested writ imposed duty to They have petition prohibition Janssen’s for writ In physician. addition consumer denied. so, liability to goal doing harm, ultimate from protect user Writ denied. end, the burden attainable.

more producing the health be on one should ALBRIGHT, Justice, dissenting: care, consuming it. not the one Bordes, Mercy fashion, at supra, majority rejected 81 U. Det. L.Rev. In wholesale the added). Virginia (emphasis West 286-87 adoption of a that doctrine numerous naturally respon- physicians duties and have apply a number states1 have seen fit to for of providing in regarding their role sibilities Although a years. I not believe that do writ It prescription medicines to consumers. prohibition develop- limited of to the —due require not to would be unreasonable presented optimal case ment of for facts — accept of those manufacturers medicines of this state should a discussion whether responsibilities. similar adopt some valiant of the learned intermedi- upon foregoing, we now hold Based doctrine, ary majority I excep- think the was that, Virginia liability products under West tionally shortsighted deciding in that the doc- law, prescription drugs are manufacturers purpose. completely trine has outlived its A duty subject to the same to warn consumers doctrine, careful consideration of the as mod- products of their as other about the risks by ified courts the Restatement and/or adopt We decline to manufacturers. (Third) Torts, suggests that there still gener- exception to this may adoption. be a need for its al rule. trying Rather than to enervate near-

IV. majority jurisdictions already that have doctrine, adopted majority should CONCLUSION earnestly any of analyzed whether denying In Janssen’s motion in limine rationales which the doctrine remain underlie adopt declining to the learned today. majority What the the circuit court concluded valid overlooks And, clearly approaches majority position. majority uses the "mere” to refer a 1. The modifier play twenty-three attempting it identifies as while I am not "numbers to the states Inc., Pfizer, game,” I note that v. adopting the learned doctrine. I in Larkin 153 difficult, (Ky.2004), appellate impossible, court identi- if not to discern how S.W.3d 758 find it twenty-three specifically adoption the number that had of the fied of states the stales, doctrine action, legislative adopted doctrine сourt or does either significant figure figure thirty-four. at Id. 767 and n. 3. not constitute a —a warning in emphasizing marketing canee of that a useful the direct fashion. And, eases, physician’s in is that the still serve those where a ex- consumers doctrine purpose prescription drugs pertise upon useful spe- a has been relied select a heavily and in those cir- cific drug, marketed learned interme- physician’s expertise diary doctrine, a is exceptions cumstances where identified all-important (Third) upon Torts, to make the selec- by relied the Restatement is a drug(s) particular prescribe; tion of well-recognized approach reasoned re- information; interpret contraindicative solving the adequacy the issue of of the interpret myriad warning-relat- by pharmaceutical compa- issued by pharmaceuti- ed information distributed ny product. for its cal manufacturer. Both the and southern northern federal Kentucky Supreme recently As the Court predicted district courts for this state recognized Pfizer, v. Larkin Court, presented issue, when with the (Ky.2004), S.W.3d would choose to the learned intermedi

Three basic rationales have been articu- ary doctrine. See Ashworth Albers Medi support cal, Inc., lated to the rule. The first (S.D.W.Va.2005); F.Supp.2d 395 prescribing physi- Bard, Inc., best rationale is that the Pumphrey v. F.Supp. C.R. superior impart cian position (N.D.W.Va.1995). Ashivorth, “ independent and can provide court described the doctrine as an ‘under medical decision whether use of as to exception’ standable rule that appropriate for treatment of a manufacturers must warn foreseeable end partiсular ‍​​​‌‌​‌‌​‌‌‌​‌​‌​‌​​​​‌‌​‌​​‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‍patient_ The second ratio- users dangers about the inherent in their nale for the rule is that manufacturers lack products.” F.Supp.2d (quoting at 407 effective USPD, Inc., means to communicate v. Alpharma Walls 887 So.2d patient.... with each The third (Ala.2004)). rationale superior role “[T]he imposing the rule is that to warn servicing patient’s upon unduly the manufacturer would inter- litany medical needs” was one of rea physician-patient fere with the relation- sons the court in Ashworth relied ship. choosing to extend the doctrine’s reach to a pharmacy. at F.Supp.2d 407. In addi essentially deciding at 763-64. After Id. citing accepted tion to rationale that “the advertising changes and communication have certain determination of whether medications attenuated or the second eliminated rationale any and medical be utilized in devices should above,2 rejected majority any stated need given requires case an individualized medical adoption for the doctrine’s judgment only by can be made Notwithstanding widespread use of patient’s physician knowledge marketing by pharmaceutical compa- efforts characteristics,” patient’s the northern dis consumer, aimed at the nies need for a trict the fact court looked to “West physician’s involvement the decision to Virginia generally follows the Restatement of specific drug choose a remains. Just be- F.Supp. appropriate Law in cases.” 906 at warning printed cause can be and adver- (citing provision of draft Restatement of part marketing plan of tised for a Touts, Liability). the Law Product Third: drug prescription does not meаn that a con- sumer, especially Finding position one educated in taken the Restate- not medical (Third) digest comprehend undeserving adop- jargon, signifi- can or ment Law3 of of fact, (a) drug majority conclusory prescription In A manufacturer of a or 2. concluded fashion that all doctrine were three of rationales for the medical sells or otherwise device who distrib- "largely unpersua- outdated drug utes a or medical device is defective sub- Corp. sive." Johnson & v. Honorable Johnson ject liability persons for caused harm Karl, at Mark A. 220 W.Va. 647 S.E.2d at drug prescription the defect. A or medical 906. legally be device is one that sold or other- only pursuant a health-care wise distributed (Third) Section 6 of the Restatement Torts: of provider’s prescription. Liability entirety, in its Products states (quoting S.E.2d at 912 at essentially that W.Va. tion, concludes majority intermediary doctrine unwork- (Third) Torts: Products Lia- the learned Restatement for require the need it would able because 149). e, bility my opinion, the at In 6 cmt. application case-by-case consideration the ex- position combined with Restatement and would developing case law” “through e,4 introduce ceptions recognized comment excep- recognizing need for present a also al- approach fair that would a balanced Johnson, Johnson & to the rule. tions (b) in clinics where mass inoculations liability vaccine purposes under Subsec- For many programs, (a), drug health- performed. medical device such prescription or tion position or other evaluate providers the time of sale are not in a defective if at care drug drug medical device: or use of the or distribution the risks attendant (1) manufacturing defect as de- patients. contains When a them to device or to relate 2(a); §in or drugs fined supplies prescription manufacturer (2) reasonably defective safe due to is not type unsuper- patients in this distribution (c); or design in Subsection as defined environment, pa- if a direct vised (3) inadequate reasonably safe due to is not effective, the law and can be tients is feasible warnings in Subsec- as defined or instructions requires measures to that effect. (d). Although rule is (c) drug device is design prescription or medical A drug generally accepted manufacturer and a reasonably if safe due to defective not legal obligation by providing to warn fulfills its drug posed by the risks of harm the foreseeable warnings provider, adequate to the health-care great sufficiently in rela- device are or medical arguments that in two have been advanced therapeutic benefits tion to its foreseeable imposing courts should consider other areas knowing providers, health-care reasonable drug liability fail to manufacturers that tort benefits, therapeutic risks and such foreseeable warnings provide In the direct to consumers. drug medical de- prescribe the or would not first, agencies governmental regulatory any patients. vice for class patients be informed of risks mandated that (d) prescription or medical device is A drug. the use of a A noted exam- attendant to inadequate reasonably instruc- safe due to requirement ple that birth control is the FDA or if reasonable instructions tiоns or warnings accompanied by pills be sold regarding risks of harm foreseeable second, package In the manu- insert. provided are not to: have advertised a facturers provid- prescribing health-care and other in the mass media. Gov- and its indicated use position in a reduce the risks ers who are that, regulations require when ernmental or with the instructions harm accordance advertised, they accom- are so must be warnings; or concerning panied by appropriate information patient when advertising. provide as to balanced risk so know that health-care or has reason to knows providers question position in both instances is whether ade- in a to reduce will not be quate warnings appropriate in- in accordance with the health-care of harm risks warnings. provider structions or insulate the manufacturer should (e) distributor of a A retail seller or other liability. from tort subject medical devise is adequate who assert the need for Those liability harm caused to consumers contend that device if: that communicate with manufacturers distribution at the time of sale or other escape liability simply consumers should not drug a manu- medical device contains the or drug prescribe the was because the decision to 2(a); facturing in or defect as defined provider. Proponents health-care made or other before the time of sale at or that, argue rule of drug medical device the of the distribution notwithstanding direct communications to fails to exercise or other distributor retail seller consumer, drugs dispensed cannot be unless a causes harm and such failure reasonable care provider makes an individualized health-care persons. drug appropriate partic- a is for a decision that patient, health-care ular and that it is for the in full: 4. Comment e states provider decide which risks are relevant to Warnings patients. e. Direct patient. particular The Institute leaves to drugs regard medi- and instructions with exceptions developing case law whether only pursu- legally cal devices that can be sold in these or other rule are, the "learned a under ant to intermediary” recognized. be rule, situations should to health-care directed warnings is mandat- (d)(2) When the content of the recognizes providers. that Subsection agency reg- by governmental approved a ed or patients and instructions direct compliance finds that with ulation and a court drugs dispensed or for that are are warranted federally preempts regulation tort liabili- personal such without administered liability ty, this Section can pro- then no under of a health-care intervention or evaluation governing compliance the rules example a attach. For of vider. An is the administration hand, physician state both to the doctrine and on the other a low this Where advis- against specific drug the use of a develop application rules as to its based on es and the particular consumer insists on a medication legal of the in the factual and variations cases exposure based on his or her to a applied. massive the doctrine was which advertising campaign specific drug, for a Consistent with comment e to the Restate- application argu- for the doctrine’s need is (Third) Torts, ment I would follow ably presume, reduced. But to as the ma- proposal Institute of American Law’s to, jority appears presence that the mere prescription drugs are marketed via which pharmaceutical advertising society in our media should be as a mass treated dis- relegates physician the role of the to a mere category. government regula- tinct Because dispensary prescriptions simply not already require heavily-mar- tions that these true. In those cases where medications appropriate drugs keted must include risk- prescribed in a are traditional fashion with part advertising related information as of the physician carefully weighing the advan- materials, procedure there is an established tages disadvantages given drug for requiring for that the manufacturers of such concerns, patient presenting specific drugs pertinent warning-related in- disclose deny on an across-the-board basis the marketing formation concurrent with the application of the learned doc- pharmaceuticals. these Where the need for applied trine —a doctrine that has been adoption the doctrine’s is most clear is where throughout country years this —seems drags subject at not the issue were of a precipitous both and unwarranted. Accord- advertising campaign massive where and/or ingly, I dissent. did in fact assume the role of a I am authorized to state that Justice Ben- intermediary” advising in “learned and rec- jamin joins dissenting opinion. ommending plaintifí/patient use a And, particular drag. in the сase of a defec- MAYNARD, Justice, concurring: drag, always tive the manufacturer should be Suppose John Doe Patient visits his small- required pharmacies to advise both Virginia suppose town West doctor. Further pur-chasers drug all of the at the direct issue prescribed drug by he is his doctor to the nature of the concerns. injury. Suppose him that the causes serious heavily one that is Pa- advertised. I Because believe the issue ade- Virginia Doe then his doctor tient sues West quate pharmaceutical warnings is one that injury largely depend unique will on the circum- drug. If caused this Court were to case, stances of the I think it was unwise adopt the learned completely cast aside the learned intermedi- Virginia doctor would remain West Furthermore, ary by attaching doctrine. lawsuit, not but the manufacturer would importance undue to the effects of direct remain the suit and would be liable marketing, majority downplays the con- damages if the manufacturer could tinuing physician plays and vital role that a show that it warned doctor risks as to the decision Thus, drug. injury associated with the appropriate given patient for a Virginia doctor would be- small-town West particular spe- based individual’s solely injury responsible come cific medical needs. In those circumstances Patient Doe an out-of-state multi-mil- while has where received extensive drug manufacturer is off the hook. lion dollar regarding material the effects of a dissenting be the result if the This would specific drug and makes an individualized way Justices had their in this case. This prescribe decision to that medication based simply be unfair. result would information, on such therе is a valid continuing permitting only look at the massive amounts rationale One need advertising done intermediary operate. learned doctrine to of direet-to-consumer (Third) Liability governmental generally, with standards see Restatement Torts: Products e, 6(d) 4(b). § cmt. at 148-49 country any in this to under- are a like other. If a drug manufacturers being injured Americans cannot plaintiff this truth. watch sued John Deere after stand through maga- lawnmowers, or skim hour of television one of its no one would being bombarded commer- zine without accept argument that local John Deere’s extolling the bene- cials and advertisements John Deere lawnmower dealer alone should Vioxx, Prilosec, Claritin, Paxil, Viagra, fits of is a be liable since dealer lawnmower Celebrex, Flonase, Pravachol, Zocor, Allegra, duty expert had a to warn about the who Nasonex, Lamisil, Lipitor, Zyrtec, Singulair, Similarly, Toyota product’s could not risks. and others. The fact is that manufac- liability products shield itself from a lawsuit four billion dollars annu- spend turers about alone, by claiming Toyota that dealer ally pharmaceutical direct-to-consumer manufacturer, Toyota duty had a to warn advertising.1 expensive Thanks to these ad- Nei- about risks associated with vehicle. vertising campaigns, consumers are we well argument sprinkler sys- ther would the of a salutary educated about effects these prevail tem manufacturer that the con- why drugs. There is no reason we should tractor, manufacturer, duty and not the had a just potential not be as educated about them system may during that fail warn sum, risks. because of direct-to-consumer Finally, fire. the same is true mediсal advertising, drug manufacturers have a pacemakers hips. devices such as or artificial ready forum which to warn health care just good except drug There is no reason products. consumers about the risks of their general products manufacturers from our lia- reason, they exempt For this should not be bility duty to warn. duty from the State warn Finally, suggested it has been places simple on manufacturers. It is a mat- learned doctrine is so riddled ter of fairness. exceptions, exceptions with swal- would malprac- When this Court decides medical so, up why the rule. If low this is should this cases, single important policy tice most adopt essentially Court a new rule that would issue to consider is the best interests of it, way I be of no effect? The see words, patients. gives In other result what learned doctrine is either use- patients promotes the best medicine and less, purpose, a doctrine that serves no real practices. Quite simply, best health care Virginia pa- harmful West doctors and goal help patients. If is to this Court were reasons, For these tients. as well as those adopt majority opinion, forth in the I set concur. drug manufacturers would have little incen- carefully patients, tive to ultimate STARCHER, J., concurring. drugs, about the consumers risks associat- (Filed 2007) June drugs. policy. ed those This is bad On with majority’s I concur with the decision to not hand, by declining recognize the other intermediary” the “learned doctrine. intermediary doctrine, this Court en- majority opinion’s lengthy What the discus- manufacturers, sures which devel- suggests, dissenting opinion’s sion and the profited oped, pi'omoted, drugs, from the clear, tenor makes is that the learned intеr- charged carefully warning pa- are with both mediary public policy docti'ine is a bad that is tients and doctors about the risks associated contradictions, so laced with caveats and ex- result, drugs. As a ceptions impossible apply it is a more able to make informed decision about fairly consistently. doctrine The doc- their treatment. medical giant tiger trine is a toothless causes significant I also find that the learned mischief, great accomplishes good. but little exception doctrine is an to our general products liability place rule that manufac- The doctrine therefore has no in our Simply many turers have a about warn consumers common law. because other products. Ultimately, jurisdictions adopted the risks of their have the doctrine isn’t Pollock, Legis.J. (And L. Prescription 1. Daniel 30 Seton Hall Drugs, Blame Canada The Rest ed World): Twenty-Year Import- The The War On Of fair, rational, say enough decipher to the doctrine is on his or her hands will be able to My always safe, good public policy. dangerous, mother drug. and and uses for the “just people that because other solely said to me responsible The doctor becomes for thing doing it doesn’t mean it’s the smart safe, making product not the manufactur- good first be a reason to do.” There should er. major adopts

before the Court a alteration to I refuse subscribe such an archaic jurisprudence; following other off our states parochial and view of the law. lemmings enough. the cliff like isn’t product liability Our law is motivated years Drug companies spend developing many public policies, valid one of which is tо drugs, years testing and more the use and improve safety products by improving conditions, drugs on various medical effect warnings and that instructions end-con- years being the manufac- and more exclusive Adopting sumers receive. the learned inter- turer, drags. marketer and distributor of mediary prescrip- doctrine in the context of time, all that it manufacturer that impinges drugs public policy. opportunity prop- has the best to discern the discourages drug companies The doctrine improper drug. of a in all er and uses And placing warnings from clear and succinct and time, manufacturer has the products. discourag- instructions on their It carefully opportunity best craft instruc- end-consumers, giving any warnings to es prod- regarding tions the safest uses of the discourages physicians. and clear uct. presumes physicians And have the typical product In a “failure to warn” lia- training every poten- and the time to discern lawsuit, bility say product we that a is defec- problem drug may tial that a cause a con- labeling, instructions or tive when the warn- sumer. sufficiently ings product’s didn’t warn the majority opinion’srejection The of the doc- end-consumer of some hazard. recognizes patients trine a should have heart, At doc- say in their course of treatment. Patients artificially liability designed trine is shift labels, can read the instructions and warn- away a from the careless manufacturer of ings, and if the manufacturer makes them product, and onto innocent enough, patients proactive clear then can be responsible distributing the defec- who is working with their doctors to receive the product tive to the consumer. The doсtrine care. Patients can manufac- best read the says that if the manufacturer warns an intel- turer’s instructions and ask their doctors ligent, trained middleman that the interactions, about or about adverse dangerous way, if used a certain then the and reactions side effects. liability end- manufacturer has no pass consumer if the middleman fails refusing And the learned interme- warnings. diary nothing a doctrine does to alter doc- duty patient. care A tor’s toward the prescription drugs, In the context of always the in- doctor has to obtain doctrine makes doctors major formed consent of course of pharmaceutical compa- the insurers of me, doctrine, drug compa- treatment. To this means that doctors nies. Under the had, have, duty profit by marketing drugs always always can their nies will consumers, patients proper they only but have to to talk to their about the uses, uses, give warnings improper hazards to doctors. and risks of of known Nothing majority presumption is that are too medical devices. changes rights respon- simpleminded opinion the instructions a doctor’s understand By rejecting gist warnings, they don’t need to sibilities. so even say they majority opinion And because the doctor is is to know exist. “learned,” money party making have to be all the in this transac- then the don’t is, instead, drag tion —that manufacturer —cannot simple; short and the instructions inac- pages escape responsibility for their actions or can drone on for so done, always like a doctor highest doctor with tons of free time tions. Just has trained dangerous of a fully about the safe and uses attempt to warns drug manufacturer must product. undеrstandably instruct the end-consum- and improper proper and uses er of the majority opin- I concur with the therefore

product. ion. are, course, some occasions where There way drug a manu-

there is no conceivable warnings to give instructions and

facturer to instance, patients in For

the end-consumer. surgery little room or emergency warnings, and all decision-

ability to read intermedi-

making in the learned must rest nurse, doctor, para- ary or the or the —the 647 S.E.2d 920 besides, the end-consumer isn’t medic. And Cheryl August Eugene and PHILLIPS “using” product in that circum- the one Phillips, wife, Petitioners his provider It is the medical care who stance.' maldng all the decisions. is INC., PHARMACY, LARRY’S DRIVE-IN also be instances where There Virginia corporation, a West drug a in an “off prescribe doctor chooses Respondent. However, way. ex- experimental and label” already liability isting product law holds No. 33194. expected a manufacturer is Supreme Appeals Court of is used hazards caused when Virginia. West ways.1 unanticipated instances, drug manufacturers But in most Submitted March 2007. provide warnings and instructions to the can Decided June placed can on bot- end-consumer. Labels be tles, boxes, into and bro- pamphlets tucked drugs or packed in with the boxes of

chures shipped hospitals and doctors’ of-

devices Samples offices

fices. distributed doctor’s sample box-

can have affixed to the already tape can and do

es. Pharmacists bottles, pill include

warnings onto often any

printed instructions af- dispensed. Before or

medication surgery, nec-

ter the end-consumer could—if

essary describing the pamphlet a —receive device, instructing drug implanted medical be used and of known

how should

problems. And so on. sum, entirely against adopting I am prod- doctrine into our existing liability Our law of contri-

uct law. indemnity, contributory negli-

bution joint liability,

gence, and of and several allocating fault a

serves us well when inadequately instructs However, prescribes patient? if a in an in an doctor uses 1. If doctor uses encouraged way, any experimental way, unanticipated, experimental but was to do so then subse- manufacturer, ‍​​​‌‌​‌‌​‌‌‌​‌​‌​‌​​​​‌‌​‌​​‌‌​‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‍governed by quent likely going then under such cir- lawsuit to be malpractice liability law: did the doc- cumstances the reasonably manufacturer has standard hazards. instruct and warn of known tor breach the standard of care owed to

Case Details

Case Name: State Ex Rel. Johnson & Johnson Corp. v. Karl

Court Name: West Virginia Supreme Court

Date Published: Jun 29, 2007

Citation: 647 S.E.2d 899

Docket Number: 33211

Court Abbreviation: W. Va.