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Don’t get too excited.  When we say a twitch, we mean it in its smallest sense.  A shudder, a tremor.  One blip followed by a long flat line.  We aren’t talking about resuscitation at this point.  But, just maybe West Virginia hasn’t signed a DNR order quite yet.

Ever since the West Virginia Supreme Court of Appeals refused to adopt the learned intermediary doctrine in State of West Virginia ex rel. Johnson & Johnson Corp. v. Hon. Mark A Karl, 220 W. Va. 463 (W. Va. 2007), we haven’t been shy about telling you all the ways that decision simply got it wrong (see here and here). But, ever the optimists, we sift and pan through West Virginia decisions like 19th century gold miners – looking for those little nuggets we can use to breathe life back into the learned intermediary doctrine.

We got one of those nuggets back in 2010 when the West Virginia Supreme Court of Appeals decided that there is no private cause of action under the West Virginia Consumer Credit and Protection Act (“CCPA”) for prescription drugs.  White v. Wyeth, 705 S.E. 2d 828 (W. Va. 2010). Nowhere in that decision will you find the words “learned intermediary.”  However, what that court did say was that when a plaintiff alleges affirmative misrepresentations, he must prove reliance and because for prescription drugs “the consumer cannot and does not decide what product to purchase”, id. at 838, plaintiffs can’t establish a causal connection.  If we were playing charades, we’d be making the “sounds like” gesture.  The court even went so far as to say that it is the physician who must “exercise[] judgment whether or not to prescribe a particular medication.”  Id.   So close.

Well, apparently we aren’t the only ones who think so.  Last week, the federal New Jersey court overseeing the In re Plavix MDL granted the West Virginia AG’s motion to remand its action alleging deceptive marketing of Plavix in West Virginia.  State of West Virginia, ex rel. McGraw v. Bristol Myers Squibb Co., 2014 U.S. Dist. LEXIS 24026 (D.N.J. Feb. 26, 2014).  The significance of the decision for us isn’t in the actual decision to remand, but rather in the court’s interpretation of White v. Wyeth.

To give you a brief but complete picture, Defendant alleged three bases for federal jurisdiction:  CAFA jurisdiction; diversity jurisdiction; and substantial federal question jurisdiction. CAFA jurisdiction for state AG actions was recently denied by the Supreme Court in Mississippi ex rel. Hood v. AU Optronics, Corp., 134 S.Ct. 736 (2014), so this court follows suit. 2014 U.S. Dist. LEXIS 24026 at *6-7. And we just told you last week about the slim circumstances in which Grable jurisdiction will be found to exist and so we weren’t surprised that the court didn’t find it here.  Id. at *22-28.  The heart of the decision, at least for us, was in the discussion on diversity.

For diversity to exist, defendant needed to establish that the State of West Virginia was not the real party in interest (a state is not considered a citizen for purposes of diversity jurisdiction).  The state argued that it was the real party in interest because, among other reasons, it was alleging violations of the CCPA and seeking civil penalties for such violations.  Id. at *14-15.  Defendant countered that under White, the state was barred from bringing CCPA claims for the marketing of prescription drugs.  The court, however, found White was limited to private causes of action.  Id. at *19.  And in so doing, described White as follows:

The West Virginia Supreme Court held in White that the CCPA does not apply to private causes of action involving prescription drugs because doctors, rather than consumers, select which drugs to prescribe to an individual, and consumers are thereby protected by the doctor’s medical judgment — which is known as the learned intermediary doctrine.

Id. at *18.  Can anyone else hear the chorus ring out Hallelujah!  While West Virginia courts may choke on the words, we aren’t the only ones willing to call a duck, a duck.  The court went on to say that it would “not engage in a lengthy discussion why the learned intermediary doctrine does not apply in parens patriae cases in West Virginia.”  Id. at *20 n.3.  That’s an acknowledgement that the learned intermediary does apply to CCPA private causes of action.  Further:

I note that when the State brings consumer fraud claims involving prescription drugs . . . the State does not need to establish reliance or causation, which is a required element in private causes of actions brought by individuals under the CCPA. In the latter scenario, because individuals must prove damages “as a result of” a defendant’s deceptive act, the application of the learned intermediary doctrine is more appropriate.

Id.  Again, music to our ears.

Now, of course, this is a New Jersey federal court and therefore, the precedential value is marginal at best.  But, it’s more than we had before.  It’s enough to keep us bent over at the stream, shaking out the debris and mud, looking for that next nugget.