Attorney: W. Va. SC ignoring law for trial lawyers' gains

John O'Brien Jul. 16, 2007, 4:00pm



CHARLESTON, W. Va. - When a state's legal reputation is so poor that it is widely regarded as the worst in which to do business, it is normally pretty hard to shock the legal community.

That's not the case with West Virginia, attorney Ted Frank said Monday.

Frank, the director of the American Enterprise Institute's Liability Project who graduated in 1994 with High Honors from The Law School at The University of Chicago, said he was stunned by a recent West Virginia Supreme Court decision that will hold pharmaceutical companies responsible for informing prospective consumers of any of their drug's side affects.

Frank feels the decision was politically motivated and was done with the intention of fattening trial lawyers' pockets.

"This goes beyond what I would expect (from West Virginia), because it's just utterly lawless," Frank said. "It's just completely unprecedented. There are 47 states that hold in the other way, and they are going out on a limb for expressly non-legal reasons.

"That's politics. That's not law."

At issue is a 33-page 3-2 majority opinion authored by Chief Justice Robin Davis that addresses the learned intermediary doctrine. Essentially, the decision refuses to acknowledge the doctrine in the state, leaving pharmaceutical companies just as liable for a learned intermediary's (i.e. doctors) prescription suggestions.

Any plaintiff suing a doctor for misdiagnosing a drug may add that pharmaceutical company as a defendant, if the pharmaceutical company had not specifically informed that plaintiff of any side effects. Justices Larry Starcher and Spike Maynard agreed with Davis, while Brent Benjamin and Joseph Albright did not.

The decision violates the federal regulatory system currently in place, which calls for warning labels, Frank said.

"There just isn't a legal standpoint, because nobody else has done this," Frank said. "The argument that pharmaceutical companies should have a duty inform consumers ignores federal regulatory system we have.

"It's like they're talking about a different universe."

And those West Virginians who are not harmed by any prescription drugs could also be on the losing end of the decision. Frank said pharmaceutical companies will have to take a close look at conducting business in the state.

That could lead to less availability for prescription drugs, which will drive up prices.

"By simply making drugs available in West Virginia, (pharmaceutical companies) are exposing themselves to tremendous liability, even if they are simply complying with federal law," Frank said. "I think any business at all has to look at what West Virginia's Supreme Court did there and realize that this is a court that does not follow the law.

"I think this will deter companies from coming to West Virginia to do business, and for the Court to so openly do it on the grounds that they did means companies who do will have on certainly on the law."

Tort reform groups like the U.S. Chamber of Commerce have long pointed to West Virginia as an area with a legal environment so untenable it drives away prospective businesses. The most recent Judicial Hellholes report released by the American Tort Reform Association ranked the state as the worst hellhole.

West Virginia's trial lawyer organization, the West Virginia Association for Justice, commended the Court's ruling, while Marjorie Powell, Senior Assistant General Counsel for the Pharmaceutical Research and Manufacturers of America, said she was troubled by it.

"It concerns us that West Virginia, contrary to 47 other jurisdictions, doesn't recognize the learned intermediary rule," Powell said. "It's not possible for patients to self-diagnose or determine which of multiple drugs would be best for them or to understand the warnings that would have to be written.

"It's still true in West Virginia -- as in every other jurisdiction -- that you can't get a prescription drug without a physician. I believe physicians in West Virginia are as careful as they are in other jurisdictions.

"Companies face more risks in West Virginia. From our perspective, it is not possible to provide an adequate warning of all of the risks."

It's just another controversial chapter in the state's sordid legal history. Attorneys Jim Beck and Mark Herrmann even compiled a list of the jurisdictions that recognize the learned intermediary doctrine. Meanwhile, Frank says only one court has ever made a similar argument to West Virginia's.

"Nobody has gone as far as West Virginia did," Frank said. "I get the opinion that they are making a political decision -- here is a way to get more money for individual West Virginians and the heck with what the law says and public policy.

"It's purely an earmark for trial lawyers."

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