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WV Supreme Court Invokes Learned Intermediary Doctrine

By Nancy Sher Cohen and Rene I. Siemens
October 31, 2007

Last year, pharmaceutical companies reportedly spent $4.5 billion on direct advertising to consumers, or about 400 times more than they spent 20 years ago. Drug company spending on advertising to consumers is increasing twice as fast as spending on promotions to physicians or on the research and development of new drugs. Given this exponential growth in direct-to-consumer advertising, it is hardly surprising that prescription drug makers' traditional immunity from consumer 'failure-to-warn' claims has increasingly come under assault. Although many courts have resisted calls from the plaintiffs' bar to allow such claims, recent decisions have created uncertainty about the future.

The 'Learned Intermediary Doctrine'

Under the 'learned intermediary doctrine,' drug manufacturers are not liable for failing to warn consumers of risks associated with prescription drugs as long as they disclose those risks to doctors. The New Jersey Supreme Court held in a landmark decision eight years ago that this rule did not protect drug manufacturers when they advertise directly to consumers. Perez v. Wyeth Labs. Inc., 734 A.2d 1245 (N.J. 1999). More dramatically, in June of this year, the West Virginia Supreme Court of Appeals rejected the learned intermediary doctrine in its entirety, on the ground that direct-to-consumer advertising made the rule 'outdated.' Johnson & Johnson v. Karl, No. 33211, 2007 WL 1888777, at *8 (W.Va. June 27, 2007). Time will tell whether Perez and Johnson & Johnson are harbingers of things to come.

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