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We pointed out recently that 32 states had recognized the learned intermediary rule either by statute, decision of the highest court, or both. We’re pleased to announce that this number has increased to 33 with the addition of Wyoming. In Rohde v. Smiths Medical, ___ P.3d ___, 2007 WL 2376613 (Wyo. Aug. 22, 2007), the court cites learned intermediary principles in two different places in holding that the defendant’s warning to the plaintiff’s treater about device fracture was inadequate. The plaintiff’s only evidence – that the doctor had not warned him – was not enough.

Warnings, however, were not the main focus of the Rohde appeal. The majority of the opinion consists of a cogent discussion of why simply pointing to a broken implant doesn’t establish either a design or manufacturing defect.