Today the World Cup takes another day off before it starts its semifinals to determine who will play for the Trophy on Sunday. I know this only because other people have told me. Left to my own predilections, I’d know none of it. But other people’s interest and intense enthusiasm for these games has swept me into rooms where I’ve actually watched them. And in so doing I’ve learned a few things about soccer. The most important is that soccer players fall – much more than your average human. They are extraordinary fallers. And they never have a mundane fall. All their falls are big productions. Players drop all over the field, grab legs, rock in fetal positions, writhe in pain, and wince and wince some more. Priests administer last rights to players doomed with shin injuries. Soccer players are the eggshell plaintiffs of the sport world. You should never walk in a crowded hallway full of soccer players. You’ll be Godzilla going down Broadway. A few unintentional shoulder brushes later and you’ll leave behind you a mass of human carnage the likes of which you have never seen before.
And, now, if a soccer player from Utah – say, someone who plays for Real Salt Lake – buys a non-prescription pain reliever at a pharmacy to help him with his life-threatening shin bruise, he may be able to sue the pharmacist for any bad advice that he’s given about the drug. A federal court in Utah recently held that pharmacists can be sued for professional malpractice or negligence based on advice offered on the suitability of a non-prescription drug. Whiting v. Rite Aid Pharmacy, 2014 U.S. Dist. LEXIS 87354 (D. Ut. June 24, 2014).
Before this decision, the state courts of Utah hadn’t authorized such an action. Ordinarily, we’d be very critical of a federal court finding a state cause of action for the very first time. But we won’t spend time on that today, mostly because the effect of this decision is limited. This particular pharmacist offered (allegedly) affirmative advice on the suitability of the drug and, more important, offered it about a non-prescription drug, meaning that the interaction did not implicate the learned intermediary doctrine or a patient’s relationship with a prescribing doctor. And there’s no question that Utah follows the learned intermediary doctrine in prescription drug cases. The Whiting court itself recognized this. Id. at *12-13. It also recognized, as we’ve told you before, that in such cases there is no cause of action for failure to warn against a pharmacist. It would invade the relationship between a patient and her or his doctor, and it would sidestep or vitiate the learned intermediary doctrine. As such, the Whiting court made clear that its decision was not applicable to litigation involving prescription drugs.
Now, the main reason that we care about this decision is removal to federal court and diversity jurisdiction. Plaintiffs in a state-court action often list a local pharmacy as a defendant in that action with the purpose (we believe) of defeating diversity between the plaintiff and the manufacturer defendant so that the defendant cannot remove the case to federal court. But if the pharmacy is fraudulently joined (meaning, usually, that there is no viable claim against it), the defendant can still remove the case. The Whiting decision changes none of that in cases involving prescription drugs and medical devices. Local pharmacies remain improper defendants in such cases in Utah courts. In fact, even in non-prescription drug litigation, the plaintiff must still allege that the pharmacist made affirmative representations about the suitability or safety of the drug. And if the plaintiff’s doctor actually recommended that the plaintiff take the non-prescription drug, there may be an argument, under that scenario, that a claim against a local pharmacist does in fact invade the physician-patient relationship and is improper.
In short, the effect of Whiting outside of pharmacy-only litigation is limited. But that’s probably not bad news for soccer players in Utah. We doubt that they really needed the pain relievers.