We thank the folks over at the FDA Law Blog for tossing this bone in our direction. It seems that a couple of days ago Rep. Bob Filner (D-CA) introduced a bill – thankfully having no co-sponsors – that would overturn the law of 48 states and the District of Columbia, including multiple decisions of the California Supreme Court (see here for details), and abolish the learned intermediary rule.
This bill, H.R. 6421, ironically entitled the “Consumer Protection Act of 2010” (this guy belongs to the Newt Gringrich school of legislation naming) purports to do nothing else. It’s full substantive text, according to Thomas:
SEC. 2. LEARNED INTERMEDIARY DEFENSE.
(a) In General – It shall not be a defense to any tort claim in any court in the United States that a manufacture of a product has fulfilled that manufacturer’s duty of care when the manufacturer provides all of the necessary information to a learned intermediary who then interacts with the consumer of the product.
(b) Definition- In this section–
(1) the term `learned intermediary’ means a person, licenced under applicable State or Federal law, to advise a consumer whether or not to use the product in question; and
(2) the term `State’ includes the District of Columbia, Puerto Rico, and any other commonwealth, possession, or territory of the United States.
Fortunately, we don’t think this bill is going anywhere in the current lame duck session of Congress, at the end of which it should end up in the dustbin of history, along with similarly misguided bills that would abolish medical device preemption or revert to pre-TwIqbal pleading standards. The next Congress, we expect, will be even less likely to go along with the liability lobby’s legislative agenda.
We could say more, but it would probably be … impolitic. And it would give this dead fish of a bill more attention than it deserves.