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Eric T. Chaffin
Eric T. Chaffin
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There is no learned intermediary doctrine in West Virginia, you say? After all, wasn’t it extinguished once and for all thanks to the West Virginia Supreme Court of Appeals’ well reasoned holding in West Virginia ex rel. Johnson and Johnson Corp. v. Karl, 647 S.E.2d 899, 913-14 (W. Va. 2007) where the Court “decline[d] to adopt the learned intermediary exception” in West Virginia? Unfortunately, the answer is not as clear as one would expect.

Two recent federal court decisions in West Virginia—one positive and one negative from an injured consumer’s perspective—highlight the ongoing learned intermediary divide.

On the positive side, we have Muzichuck v. Forest Labs, Inc., 07-cv-16, 2014 WL 3530367 (N.D. W. Va. July 15, 2014). The defendant in Muzichuck argued that, despite Karl, the learned intermediary doctrine still shielded drug manufacturers in West Virginia if the drug in question was never marketed directly to consumers. Id. at *2. But the Muzichuck Court, after a thorough analysis of Karl and several post-Karl decisions, swiftly rejected this reasoning, holding that Karl “forthrightly rejects the [learned intermediary doctrine] as a cognizable defense to be asserted by prescription drug manufacturers.” Id. at *5. Thus, Muzichuck reinforced Karl’s holding that drug manufacturers may not rely upon the learned intermediary doctrine in West Virginia, regardless of whether or not they engaged in direct-to-consumer advertising.

Tyree v. Boston Scientific Corp., 12-cv-8633, 2014 WL 5431993 (S.D. W. Va. Oct. 23, 2014) falls on the other end of the spectrum. In Tyree, a court in the Southern District of West Virginia followed the “narrowest reading of Karl” and held that the learned intermediary doctrine still protects medical device manufacturers that do not engage in direct-to-consumer advertising. Id. at *5-6. At least, that’s the narrowest holding of Tyree. The Tyree Court based its decision, in part, on the fact that Karl only addressed claims brought against a prescription drug manufacturer, and did not specifically address claims brought against a medical device manufacturer. Id.

In short, Karl remains the law of the land (Rocky Top land, anyway) in West Virginia, and a prescription drug manufacturer in West Virginia cannot avail itself of the learned intermediary doctrine regardless of whether or not it engaged in direct-to-consumer advertising. The public policy behind this reasoning is as strong as ever: “West Virginia physicians naturally have duties and responsibilities regarding their role in providing prescription medicines to consumers. It would be unreasonable not to require the manufacturers to accept similar responsibilities.” Karl, 647 S.E.2d at 913-14. Karl did not limit this holding to prescription drug manufacturers. Nevertheless, at least in the Southern District of West Virginia, consumers injured by a medical device manufacturer’s failure to provide them with adequate warnings now face an uncertain future, since other judges in the Southern District of West Virginia may rely upon the Tyree Court’s interpretation of Karl.