This post is only from the non-Butler Snow part of the Blog.
As our 50-state survey of the learned intermediary rule demonstrates, the rule now applies in all fifty states. That includes statutes or high court decisions from 38 states and the District of Columbia, intermediate state appellate decisions from four more states, and federal appellate Erie predictions from seven more states and Puerto Rico. All told, only three states lack binding appellate precedent approving of the learned intermediary rule: Rhode Island, South Dakota, and Vermont. All three of those states have federal district court precedent, and Rhode Island has unpublished federal appellate authority in addition.
Then there’s Oregon. That state was an early adopter of the learned intermediary rule, see McEwen v. Ortho Pharmaceutical Corp., 528 P.2d 522, 528 (Or. 1974), but a subsequent decision held that the Oregon product liability statute, which basically adopted Restatement §402A in toto, meant that the rule did not apply in strict liability cases, because §402A did not reference the rule. Griffith v. Blatt, 51 P.3d 1256, 1262 (Or. 2002).
But in Oregon strict liability litigation, or anywhere else that some plaintiff argues that for some reason the rule doesn’t apply, there is a backup argument – implied preemption.Continue Reading Preemption as a Backup for the Learned Intermediary Rule