I can make a hat, a brooch, or a pterodactyl.  Of course, that’s a famous line from the movie Airplane!  But, it seems to have taken on a new meaning now that we aren’t out and about like we use to be.  After work, weekends, before work, lunch hour.  All of these used to be errand-running times.  Being told you’re out of toothpaste at 9:30 at night used to be a major inconvenience, but it was a problem that could be fixed with a quick trip to a 24-hour drug store.  Adjusting dinner plans to grill outdoors because it was unexpectedly sunny and 70 was an easy food store stop on the drive home from work.  Now, you may be waiting two weeks for a food delivery and hoping you haven’t forgotten anything really essential, like toothpaste.  But, on the flip side, being quarantined has led to some creative repurposing of whatever you happen to have sitting around the house.  For instance, we’ve seen masks made from anything from Crown Royal bags to kippahs.  Mother’s Day is around the corner. Need flowers?  Got old encyclopedias or outdated text books.  The pages can be accordion pleated and turned into a vase of flowers for mom.  What about all those extra wine corks you’ve amassed during quarantine.  Did you know you can glue them together in a crisscross pattern to make a trivet?  And, if you’re cleaning out your closet, don’t throw out all those ties you aren’t wearing.  They can be turned into glass cases (or really cases for anything).  That stack of old t-shirts can become shopping bags (no sewing required) or braided into hair bands.

And repurposing is sort of what we want to do with today’s case.  We’re going to toss out the ultimate ruling on defendant’s summary judgment motion and save to use another day its learned intermediary analysis.  Heinrich v. Ethicon, 2020 WL 1916877 (D. Nev. Apr. 17, 2020) is a transvaginal surgical mesh case that was remanded from the MDL in West Virginia.  One of the remand court’s first tasks was to decide the pending summary judgment motion.  After plaintiffs withdrew several of their claims, the motion was limited to plaintiff’s strict liability failure to warn claim.  Id. at *1.  The primary issue – whether the learned intermediary doctrine applied.

The reason that’s an issue is because the Nevada Supreme Court has yet to rule on the issue in a pharmaceutical or medical device case.  We think that’s splitting hairs since that court did adopt the learned intermediary doctrine in a pharmacist liability case and we don’t understand how it would apply to a pharmacist and not a manufacturer.  Fortunately, the Nevada District Court didn’t see a difference either.  The rationale in the pharmacist case (Klasch v. Walgreen Co., 264 P.3d 1155 (Nev. 2011)) was that a “pharmacist does not owe a duty to warn a customer of a medication’s generalized risks because the physician who prescribed the medication is in the best position to do so.”  Heinrich, at *3.  The same policy reasons that supported adopting the doctrine as to pharmacists support applying it in products liability cases against manufacturers:

The medical device manufacturer, like the pharmacist, is not in the best position to weigh the risks and benefits of using the device in a particular patient. Rather, “the physician is in the best position to understand the patient’s needs and assess the risks and benefits of a particular course of treatment.”

Id. (quoting Talley v. Danek Med., Inc., 179 F.3d 154 (4th Cir. 1999)).  Therefore, the court predicted Nevada would adopt the learned intermediary doctrine for medical device manufacturers.

There was also a second dispute as to the doctrine – whether it was an affirmative defense.  Plaintiff argued that it was and that therefore, defendant bore the burden of proving that plaintiff’s physician was adequately warn.  Defendant argued that the learned intermediary does not shift the burden of proof but rather “defines the scope of their duty to the plaintiffs.”  Id. at *2.  Plaintiff relied primarily on dicta in an old muddled, plurality opinion by the Nevada Supreme Court (we’ve discussed that case here).  But that overlooks that in deciding Klasch, the court adopted the doctrine “in terms of defining the scope of the pharmacist’s duties.”  Heimrich, at *4.  The court found further support for defendant’s position in the consistent Nevada rulings stating that the “plaintiff must prove the element of causation in a strict liability case.”  Id. Therefore, the court also predicted that Nevada would not consider the learned intermediary doctrine an affirmative defense and would keep the burden of proof on plaintiff.  Id.

That’s where our discussion of the case comes its most useful conclusion because the rest explains why there is a genuine dispute regarding the adequacy of the warnings based on the testimony and changed practices of plaintiff’s physician.  That portion of the case is fairly case specific, so we don’t view it as undermining the real takeaway here – Nevada would adopt the learned intermediary doctrine in products liability cases.  We think we’ll have ample reasons to repurpose that nugget – at least until the Nevada Supreme Court has the opportunity to reach the same conclusion itself.