West Virginia Rejects Learned Intermediary Doctrine

In Johnson & Johnson v. Karl, the West VIrginia Supreme Court upheld a trial court's refusal to recognize the learned intermediary doctrine in West Virginia law.  Citing the vast sums spent by prescription drug manufacturers on direct-to-consumer adverstising and reports that patients increasingly pressure doctors to prescribe drugs that they have seen advertised, a 3-2 majority of the Court found the learned intermediary doctrine "outdated and unpersuasive," at least in failure to warn cases involving prescription drugs.  The Court held that "under West Virginia products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers."  The Court also noted the existing duties of physicians toward their patients and observed that, under West Virginia's law of comparative contribution, liability may be allocated between drug manufacturers and prescribing physicians.  The dissent called the majority opinion "exceptionally shortsighted" and argued that the majority attached undue importance to advertising and downplayed the role of the physician.  See Steve Korris' story in The West Virginia Record.

JDP