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With a lot of you on the way out the door for Labor Day, here are a couple of new (at least to us) cases, that while not important enough to merit lengthy discussion, which contain something interesting (to us defense drug and device lawyers, that is).
Cheatham v. Teva Pharmaceuticals, 2010 U.S. Dist. Lexis 90587 (E.D. Ark. May 20, 2010).  The plaintiff sued a new defendant we’ve never seen before – a publisher of those drug information sheets (“monographs”)that pharmacies give out with their filled prescriptions.  The court found the claim unmeritorious, for several reasons, and granted summary judgment:

First, a disclaimer at the top of the monograph advised [plaintiff] that it was “not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects” or to be used as “specific medical advice.”  Second, there simply is nothing extensive or detailed about the generic drug information provided in the monograph.  Third, there is no basis for concluding that the monograph was intended to supplant either [plaintiff’s] physician’s warnings regarding the prescribed medication or the pharmacist’s duties in connection with filling the prescription.  [The publisher] did not deal directly with [plaintiff], but provided educational materials to [plaintiff’s pharmacist] to permit it to comply with its Pharmacy Board mandated patient counseling requirements.  It would be contrary to existing legal principles to impose upon [the publisher] a duty greater than the pharmacy that filled the prescription and provided the monograph to [plaintiff].

2010 U.S. Dist. Lexis 90587, at *8.  The last point in the quote, is a holding that pharmacists have no duties to warn patients under Arkansas’ learned intermediary rule.

The second case is a remand case, Smith v. SmithKline Beecham Corp., 2010 U.S. Dist. Lexis 89759 (E.D. Ky. Aug. 30, 2010).  The case was remanded, upon a finding that one of the claims against the prescriber might possibly state a claim (no fraudulent joinder).  This was one of those cases where the plaintiff alleged inconsistent theories:  (1) that the manufacturer concealed the risk from the doctor, and (2) that the doctor knew the risk but didn’t tell the plaintiff.
That’s not particularly interesting in and of itself (the court found that inconsistent pleading was allowed), but what the court had to say about a physician’s duties under the learned intermediary rule is:

  • The “physicians’ duty of care requires that they stay abreast of medical developments,” from sources “independent” of drug manufacturers.  Id. at *8.
  • “[T]he onus is on the physician to exercise his professional judgment as to whether to write a prescription on the basis of manufacturer warnings and also to translate those warnings to the patient.”  Id. at *11.

We like quotes like that, because they make it clear that the learned intermediary rule always applies once there’s an individualized physician-patient relationship, and that the applicability of the rule doesn’t depend on whether the warnings are adequate (the defendant might lose in that situation, but the rule isn’t ousted).
There’s another interesting point, in footnote 4.  The court debunks the plaintiff’s assumption that, even though the case was removed to federal court, state pleading standards would apply.  Not so, the court held – “the federal rules apply.”  Id. at 13-14 n.4.  After Twiqbal, we’ve seen some plaintiffs argue that complaints filed in state court should be judged by state pleading standards, even after the case is in federal court.  That’s crazy, of course, but it’s a pain finding precedent for something so obvious.  So we’re glad any support for this proposition that we can find.