Today’s case, Bradley v. CVS Pharmacy, Inc., 2021 Cal. App. LEXIS 451, 2021 WL 2176797 (Cal. Ct. App. May 28, 2021), is not about drug or device product liability, but its discussion of deference to administrative agencies is interesting. There are several different but closely related doctrines that either require or permit judicial deference to administrative agencies. One such doctrine, typically described as the exhaustion doctrine, requires parties to exhaust their remedies in an administrative tribunal before seeking relief in court. We know this doctrine fairly well because it keeps getting used against us in our pro bono prisoner civil rights cases. Whenever we represent a prisoner alleging some sort of deprivation by prison authorities (e.g., housing or diet restrictions, access to certain written materials, discipline, etc.), the first defense raised by the other side is failure to exhaust administrative remedies. Sometimes they have a point. Sometimes they don’t.

In Bradley, the plaintiff was a doctor who specialized in the treatment of pain. A pharmacy stopped filling prescriptions written by that doctor because it spotted what it believed was a pattern of overprescribing controlled substances. (You might recognize this fact pattern to be something of a hot button issue these days. Your law firm might even be involved in some way in opioid litigation.) The doctor sued the pharmacy, seeking a preliminary injunction requiring it to fill the prescriptions. The trial court denied the injunction, ruling that the doctor should first have exhausted administrative remedies with the California State Board of Pharmacy. The appellate court affirmed, but on alternative grounds. How it got to those alternative grounds makes for good reading on the various species of exhaustion/deference/abstention doctrines.

The appellate court concluded that the exhaustion doctrine did not apply here.There are three rationales supporting exhaustion in certain situations. First, an aggrieved party is generally required to seek administrative relief when a statute and lawful regulations pursuant thereto establish a quasi-judicial administrative tribunal to adjudicate statutory remedies. In such a situation, the administrative tribunal is charged with the responsibility to resolve the dispute, and the courts may act only to review the final administrative determination. Second, the exhaustion doctrine generally applies when a private or public organization has provided an internal remedy. This strand of the doctrine is based on a judicial policy that the association itself should in the first instance pass on the merits of an individual’s application rather than shift this burden to the courts. Third, courts have required exhaustion of administrative remedies in a variety of public contexts where the administrative agency possesses a specialized and specific body of expertise in a field that particularly equips it to handle the issue in dispute.

The Bradley court held that the first two rationales for administrative exhaustion did not apply. The State Board of Pharmacy certainly had enforcement powers, but it had no power to adjudicate civil lawsuits. The doctor’s claims, whatever their merit, were originally cognizable in court. Moreover, there was no private or public organization that provided an internal remedy. The State Board “is not an organization with an internal dispute resolution procedure, but an oversight and enforcement entity.”

All that being said, there was no doubt that the State Board of Pharmacy possessed peculiar expertise. It was also well-positioned to “adopt a uniform approach” to evaluating whether pharmacy programs prescription surveillance programs were consistent with pharmacists’ professional obligations. What then? Is one out of three good enough? Nope.

But that brings us to another doctrine: primary jurisdiction. The primary jurisdiction doctrine permits judicial deference to administrative expertise. Like the exhaustion doctrine, the doctrine of primary jurisdiction promotes comity between courts and agencies. The major difference between the two doctrines is whether courts are required to defer to an administrative agency. The exhaustion doctrine applies where a claim is cognizable in the first instance by an administrative agency alone, and the primary jurisdiction doctrine applies where a claim is originally cognizable in the courts but involves issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In the latter circumstance, the judicial process is suspended pending referral of such issues to the administrative body.

In Bradley, the court held that primary jurisdiction supported a stay of the doctor’s civil suit against the pharmacy pending a determination by the State Board of Pharmacy as to whether the pharmacy properly opted not to fill the prescriptions. The doctor complained that a referral to the Board would cause him detriment from delay, but the appellate court essentially said that was too bad and that, in any event, the doctor could have avoided such delay by going immediately to the Board. Whatever the Board decided, the doctor would eventually get his day in court, but it would be a court that had the benefit of the Board’s expertise.

Though the trial court had erred in invoking exhaustion rather than primary jurisdiction, the record showed that the trial court considered the relevant factors for primary jurisdiction and exercised its discretion in a manner that fully supported primary jurisdiction. Accordingly, the appellate court in Bradley affirmed denial of the primary jurisdiction.

We’ve written about primary jurisdiction before. (Here, for example.) It has been applied in some cases a bit closer to the type that occupy us, though not often enough. We recognize it is now a mere pipe dream, but imagine how much more fair and consistent things would be, and how much judicial efficiency would be improved, if plaintiffs whose product liability claims boiled down to an assertion that the defendant violated FDA regulations, or the product was not as safe and effective as the FDA concluded, or even that FDA got things wrong, were sent, via primary jurisdiction, to get the FDA’s input. We’d wager that the extra effort involved, plus the likely advice of the FDA, would trim back docket-loads, including Multidistrict Litigation megamonsters, substantially. What could serve judicial efficiency better than that?