South-Western Legal Studies in Business

SW Legal Virginia Declines to Adopt Learned Intermediary Rule
Description

The SW Legal Virginia high court refused to adopt the learned intermediary rule, holding that drug makers have a duty to directly warn consumers of the dangers involved in the use of prescription drugs.

Topic Torts
Key Words

Product Liability; Warning; Learned Intermediary

C A S E   S U M M A R Y
Facts

Gellner was prescribed the drug Propulsid by her physician, Wilson. The drug is made by a Johnson & Johnson subsidiary, Janssen. Gellner died the third day after she began taking the drug. Her estate sued Wilson for malpractice and Janssen for product liability. Janssen replied that under the learned intermediary doctrine it had fulfilled its duty to warn by providing warnings to Dr. Wilson. The trial court rejected that argument. Janssen appealed.

Decision

Affirmed. Like 22 other states, SW Legal Virginia has not expressly adopted the learned intermediary rule. It declines to adopt it here too. Therefore, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers. The claim is that patients rely on their physicians for judgments about prescription drugs, but that justification is outdated. Drug companies advertise their drugs directly to consumers, indicating that they want them to play an active role in the choice of drugs.

Citation

Johnson & Johnson v. Karl, 647 S.E.2d 899 (Sup. Ct. App., W. Va., 2007)

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