Blogging attorneys warn drug companies in W.Va.

By John O'Brien | Oct 27, 2009



CHARLESTON, W.Va. (Legal Newsline) - A West Virginia Supreme Court decision to ignore 47 other jurisdictions is at the center of a new blog post by a pair of attorneys who say prescription drug companies should think twice about doing business in West Virginia.

James Beck, of the Philadelphia office of Deckhert, and Mark Herrman, of the Chicago office of Jones Day, posted their thoughts Monday, saying out-of-state resident who sues over alleged side effects in West Virginia has a greater chance of success than in his or her home state.

A federal court has ruled that the learned intermediary doctrine, which the state Supreme Court decided against adopting in 2007, can not be applied to out-of-state plaintiffs who sue in West Virginia courts.

"Thus: An Alabama physician prescribes a drug to an Alabama resident. The resident uses the drug in Alabama and is allegedly injured by the drug there. Alabama law recognizes the learned intermediary doctrine, for its own sound policy reasons," the post says.

"But the plaintiff sues in West Virginia, which is the only state that rejects the learned intermediary doctrine. A recent case says that the drug company does not get the benefit of the learned intermediary doctrine because the doctrine is repugnant to West Virginia public policy."

By refusing the learned intermediary doctrine, the state Supreme Court required drug companies to notify all users of any possible side effects. Most states have ruled that physicians (learned intermediaries) have some responsibility to do so.

Federal courts in West Virginia had applied the doctrine before the state Supreme Court decision. Then-Chief Justice Robin Davis called it a "useless 82-year-old relic."

"When the learned intermediary doctrine was developed, direct to consumer advertising of prescription drugs was utterly unknown," she wrote. "Pharmaceutical manufacturers never advertised their products to patients, but rather directed all sales efforts at physicians."

She wrote that the law created an exception to the duty of a manufacturer to warn consumers directly of risks.

"For good or ill, that has all changed," Davis wrote. "(W)e now hold that, under West Virginia products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers."

Late Justice Joseph Albright dissented.

"Just because a warning can be printed and advertised as part of the marketing plan for a prescription drug does not mean that a consumer, especially one not educated in medical jargon, can digest or comprehend the significance of that warning in a useful fashion," Albright wrote.

Beck and Herrman offered a few pieces of advice for drug companies.

One is to make a case that West Virginia has little public policy interest in regulating the relationships between non-West Virginians and their doctors, and another would be to argue that other states have an interest in governing their own relationships.

"Why should the public policies of 49 other states all become subordinate to the public policy of West Virginia?" Beck and Herrman wrote.

The third option is to claim the decision raises constitutional problems regarding states regulating out-of-state conduct.

"Can a North Carolina plaintiff sue outside the state (which doesn't recognize strict liability) to recover under some other state's 'strict liabilty' doctrine as a matter of public policy? How about a Michigan or Texas plaintiff trying to escape those state's FDA-approval presumptions?" they wrote.

"We're struggling to put our finger on it right now, but what the Woodcock court did can't possibly be right. 'Public policy' must mean more than just the justifications given by a court for a common-law decision. Perhaps declarations of 'public policy' must involve, at minimum, determinations concurred in by the other branches of government."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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