No. 33211 - State of West Virginia ex rel. Johnson & Johnson Corporation and Janssen
Pharmaceutica, Inc. v. The Honorable Mark A. Karl, Judge of the Circuit Court of Marshall
County, Daniel W. Wilson, M.D., and Estate of Nancy J. Gellner
Maynard, Justice, concurring:
Suppose Patient John Doe visits his small-town West Virginia doctor. Further
suppose he is prescribed a drug by his doctor that causes him serious injury. Suppose that
the drug is one that is heavily advertised. Patient Doe then sues his West Virginia doctor
and the drug manufacturer for the injury caused by the drug. If this Court were to adopt the
learned intermediary doctrine, the West Virginia doctor would remain in the lawsuit, but the
drug manufacturer would not remain in the suit and would not be liable for damages if the
drug manufacturer could show that it warned the doctor of the risks of injury associated with
the drug. Thus, a small-town West Virginia doctor would become solely responsible for the
injury to Patient Doe while an out-of-state multi-million dollar drug manufacturer is off the
hook. This would be the result if the dissenting Justices had their way in this case. This
result simply would be unfair.
One need only look at the massive amounts of direct-to-consumer advertising
done by drug manufacturers in this country to understand this truth. Americans cannot
watch an hour of television or skim through a magazine without being bombarded by
commercials and advertisements extolling the benefits of Viagra, Vioxx, Prilosec, Claritin,
Paxil, Zocor, Celebrex, Flonase, Allegra, Pravachol, Zyrtec, Singulair, Lipitor, Nasonex,
Lamisil, and others. The fact is that drug manufacturers spend about four billion dollars
annually on direct-to-consumer pharmaceutical advertising. (See footnote 1)
Thanks to these expensive
advertising campaigns, we consumers are well educated about the salutary effects of these
drugs. There is no reason why we should not be just as educated about their potential risks.
In sum, because of direct-to-consumer advertising, drug manufacturers have a ready forum
in which to warn health care consumers about the risks of their products. For this reason,
they should not be exempt from the general duty to warn that this State places on
manufacturers. It is a simple matter of fairness.
When this Court decides medical malpractice cases, the single most important
policy issue to consider is the best interests of patients. In other words, what result gives
patients the best medicine and promotes the best health care practices. Quite simply, the
goal is to help patients. If this Court were to adopt the learned intermediary doctrine, drug
manufacturers would have little incentive to carefully warn patients, the ultimate consumers
of drugs, about the risks associated with those drugs. This is bad policy. On the other hand,
by declining to recognize the learned intermediary doctrine, this Court ensures that drug
manufacturers, which developed, promoted, and profited from the drugs, are charged with
carefully warning both patients and doctors about the risks associated with the drugs. As
a result, patients are able to make a more informed decision about their medical treatment.
I also find it significant that the learned intermediary doctrine is an exception
to our general products liability rule that manufacturers have a duty to warn consumers about
the risks of their products. Ultimately, drugs are a product like any other. If a plaintiff sued
John Deere after being injured by one of its lawnmowers, no one would accept John Deere's
argument that the local John Deere lawnmower dealer alone should be liable since the dealer
is a lawnmower expert who had a duty to warn about the product's risks. Similarly, Toyota
could not shield itself from a products liability lawsuit by claiming that the Toyota dealer
alone, not the Toyota manufacturer, had a duty to warn about risks associated with the
vehicle. Neither would the argument of a sprinkler system manufacturer prevail that only
the contractor, and not the manufacturer, had a duty to warn that the system may fail during
a fire. Finally, the same is true of medical devices such as pacemakers or artificial hips.
There is just no good reason to except drug manufacturers from our general products
liability duty to warn.
Finally, it has been suggested that the learned intermediary doctrine is so
riddled with exceptions, the exceptions would swallow up the rule. If this is so, why should
this Court adopt a new rule that would essentially be of no effect? The way I see it, the
learned intermediary doctrine is either useless, a doctrine that serves no real purpose, or harmful to West Virginia doctors and patients. For these reasons, as well as those set forth
in the majority opinion, I concur.
Daniel L. Pollock, Blame Canada (And The Rest Of The World): The Twenty-Year
War On Imported Prescription Drugs, 30 Seton Hall Legis.J. 331, 345 (2006).