In June 2007, the West Virginia Supreme Court refused to adopt the learned intermediary doctrine.
We deplored State of West Virginia ex rel Johnson & Johnson Corp. v. Hon. Mark A. Karl when it came down, and we continue to deplore it today.
Although we didn’t like the result, Karl was good for us in some ways. It prompted us to publish a long post explaining why the learned intermediary doctrine makes sense.
We included New Mexico among the states in which intermediate appellate courts had adopted the doctrine. If you had asked us, we would have predicted that the New Mexico Supreme Court would go along with the vast majority of states.
The United States District Court for the District of New Mexico begs to differ. In Rimbert v. Eli Lilly & Co., No. CIV 06-0874, slip op. (D.N.M. Aug. 22, 2008) (link here), Judge Browning made the Erie prediction that the New Mexico Supreme Court would reject the learned intermediary doctrine.
We hate 105-page decisions that go against us and about which we feel compelled to publish a post. Do we really have to spend all that time torturing ourselves?
For you, dear reader, we do.
In Rimbert, the plaintiff pleaded that Gilbert Rimbert’s ingestion of Prozac caused him to shoot his wife, his dog, and himself. Slip op. at 9. The plaintiff sued Eli Lilly on the usual collection of product liability and warranty claims.
The court spent the first 56 pages of its decision explaining the facts and then generally describing the law governing assorted substantive areas. At page 57, you hit “Analysis.”
A federal district court is, of course, supposed to follow the state court’s lead on questions of state law. If state law is uncertain, federal courts should err on the side of caution, trying not to expand liability. (For our favorite writers on that subject, see — well, us — back in 2006, when we were young.)
In Rimbert, the federal court acknowledged that three different New Mexico intermediate appellate courts had adopted the learned intermediary doctrine. Id. at 23-26. And the court recognized that the Tenth Circuit had predicted that the Wyoming Supreme Court would adopt the doctrine. Id. at 26-27.
(The Tenth Circuit was, incidentally, correct. Shortly after Karl came down, the Wyoming Supreme Court chose to follow the overwhelming majority of courts and adopt the learned intermediary doctrine. (Your humble scribes were on the scene to report on Rohde v. Smiths Medical back in August 2007.))
The Rimbert court decided that the three state appellate decisions were old, and the Tenth Circuit prediction (in a case decided in 2003) applied only to Wyoming, not to New Mexico. The Rimbert court was persuaded that the New Mexico Supreme Court would, if presented with the question today, follow the lead of the Karl decision out of West Virginia and reject the learned intermediary doctrine.
The court presented some supposed policy arguments for rejecting the doctrine. Id. at 66-71. We don’t like ’em, and we’ve already explained why those arguments are wrong, so we won’t repeat the discussion here.
The court denied Lilly’s motion for summary judgment on the strict liability and negligence claims. It did grant summary judgment on plaintiff’s warranty claims — but the plaintiff conceded that those claims fell.
If you’re looking for a glimmer of light in the darkness of Rimbert, the court did grant summary judgment on the negligence per se claim, holding that recognizing a state law claim for an alleged violation of the Federal Food, Drug and Cosmetic Act would undo Congress’s decision not to create a private right of action under that law. Id. at 95-101.
Any other light in the darkness? Rimbert should have a pretty limited impact, because state court judges remain bound to follow New Mexico’s intermediate appellate courts, and the Rimbert decision of course does not bind other federal judges.
But we had to search pretty hard for that silver lining in the cloud that is Rimbert.
It’s usually brighter than that in the deserts of New Mexico, isn’t it?