Recently we published a post, “One, Two, Three Strikes You’re Out,” about three recent (non-pelvic) mesh wins that occurred less than one week apart. We spent the most ink on Nowell v. Medtronic Inc., ___ F. Supp.3d ___, 2019 WL 1434971 (D.N.M. March 29, 2019), which also happened to be the longest of the trio and the only one to be published. We went on and on about Nowell’s recognition of the learned intermediary rule as New Mexico law, again in part because Nowell itself seemed to go on and on about that subject. See 2019 WL 1434971, at *40-47 & n. 25.
As veterans of the learned intermediary rule wars over SSRIs in the (relatively) early days of the Blog, we were quite aware of Rimbert v. Eli Lilly & Co., 577 F. Supp.2d 1174 (D.N.M. 2008) – see our blogpost here. The extensive and thoughtful analysis of rule in Nowell that we discussed seemed so much different (except for the “extensive” part) from the depressingly contrary approach taken in Rimbert. The Rimbert discussion started with “the Supreme Court of New Mexico would not adopt the learned-intermediary doctrine” because “it is fundamentally inconsistent with New Mexico’s strict-liability jurisprudence,” and went on to predict “that the Supreme Court of New Mexico would be more persuaded by the analysis in State ex rel. Johnson and Johnson Corp. v. Karl rather than what other courts, including many state courts and the New Mexico Court of Appeals, have found.” 577 F. Supp.2d at 1215, 1217. Karl, of course, was the notorious decision that for a time made West Virginia the only state in the nation to reject the learned intermediary rule.
Anyway, in discussing Nowell we gave Rimbert a sideswipe, that “in the past one pro-plaintiff court tried to say the rule didn’t apply” in New Mexico. That’s where we were wrong.
Turns out it was the very same judge.
That’s right. The same judge who found the learned intermediary rule incompatible with strict liability in 2008, and wanted to follow Karl − well, by 2019 he was writing footnote 25 in Nowell recognizing that the rule was virtually universal and predicting that New Mexico would follow suit (and citing, among many others, us, for that proposition).
That says something – and we mean something more than that we should have been more careful reading Nowell. No, Judge Browning’s conversion from 2008 through 2019 speaks to what we called the “Renaissance of the Learned Intermediary Rule” in 2016, and the “Closing of the Learned Intermediary Frontier” in 2011. Court after court in jurisdiction after jurisdiction has refused to drink the Kool-Aid the other side peddles about the rule supposedly being anachronistic. Rather, they have recognized that the patient-consults-with-physician model as a prerequisite to getting a drug prescription reflects both what does happen and what should happen under the American health care model. There’s a reason we call them “prescription” drugs. Any contrary rule, that would reward plaintiffs for ignoring their doctors and relying on Internet-based non-professional opinions (and possibly on-line “pharmacies” that don’t require prescriptions), would be both bad law and bad policy.
That Judge Browning can come virtually full circle (he still doesn’t like DTC advertising) on the learned intermediary rule since 2008 is only the latest reminder of how far the law has come and the direction in which it is going on this issue. The learned intermediary rule is one of the most universally-followed legal principles of American jurisprudence. It’s more entrenched than the at-will employment doctrine or the economic loss rule. It’s more universal than the Uniform Commercial Code. There’s now precedent for the rule in every state, appellate precedent in every state but one, and adverse precedent practically nowhere. Karl was overturned legislatively, and every high court to consider the rule since has adopted it.
So we apologize for being too dismissive of Rimbert, and too stereotypical in our thinking to assume that it “had to” be written by a different judge. Judges (at least fair-minded ones) can be persuaded, and the learned intermediary rule is very persuasive.