Thanks and a tip of the cyberhat to Jeff Pilkington and Geoff Klingsporn of Davis, Graham & Stubbs for letting us know about O’Connell v. Biomet, Inc., No. 09CA0224, slip op. (Colo. App. March 18, 2010), which explicitly adopted the learned intermediary rule, it believed, for the first time.  There’s a fairly long discussion, but here’s the key quote:

Based on the above authorities, we are persuaded that the learned intermediary doctrine should apply to failure to warn claims in the context of a medical device installed operatively when it is available only to physicians and obtained by prescription, and the doctor is in a position to reduce the risks of harm in accordance with the instructions or warnings.

O’Connell, slip op. at 8.  We’d already put Colorado in the pro column based upon Hamilton v. Hardy, 549 P.2d 1099, 1110 (Colo. App. 1976), but O’Connell didn’t view the holding in Hamilton, which it described as the “drug manufacturer’s duty is to give adequate warnings to the medical profession,” id. at 6, as controlling on the question.  Guess what?  We don’t care.  We’ve certainly got definitive favorable Colorado appellate precedent now, and that’s what counts.

The learned intermediary rule, of course, doesn’t usually win any case for the defense by itself – but this time it apparently did.  It seems that plaintiffs changed their warning-related argument completely on appeal, and thus managed to waive both their prior argument (by not raising it on appeal) and their new argument (because it wasn’t presented to the court below).  Slip op. at 9-10.  Ouch.