Photo of Michelle Yeary

Coming off Super Bowl weekend, we have commercials on the brain.  The big game has given us some of the most iconic ads and mascots of all time.  From Budweiser alone we have the Frogs, Wassup!, and the Clydesdales.  This year’s ads were full of celebrities, but that’s nothing new.  McDonald’s had the Showdown with Jordan and Bird; Amazon had Harrison Ford arguing with his Alexa-collar-enabled dog; and what about Betty White launching Snickers “you’re not you when you’re hungry” campaign.  Of course, most agree that the most iconic Super Bowl ad is Apple’s “1984.”  Not sure that any 2022 ad will bump Apple from the top-spot, but we give a thumbs-up to the emphasis on nostalgia – Mike Myers as Dr. Evil, Jim Carrey reprising the Cable Guy, seeing Ken Jeong and Joel McHale together again, and last but far from least Chevy re-creating the Sopranos opening with the mob boss’s daughter Meadow (directed by David Chase too).  Even better, that commercial was not previewed before the big day.  With all of that leading us down memory lane, today’s case made us think of an old campaign by the Florida Orange Growers Association – Florida orange juice, it isn’t just for breakfast anymore.  True too for the learned intermediary doctrine – don’t limit yourself to using just on failure to warn.

Plaintiff brought a putative economic loss class action involving a prescription drug that was removed from the market for possible carcinogenicity.  Kamlade v. Leo Pharma Inc., 2022 U.S. Dist. LEXIS 21963, *2-3  (E.D. Cal. Feb. 6, 2022).  Plaintiff alleged that he relied on the drug’s labeling when he decided to use the medication and through that labeling, the manufacturer represented and warranted that the product was free from defects and safe.  Id. at *4.  In his complaint, plaintiff asserted only one cause of action – breach of implied warranty of merchantability.  Id. at *5.

Defendants moved to dismiss the complaint on numerous grounds, the first of which was the learned intermediary doctrine.  California law provides that a manufacturer of a prescription drug need only provide adequate warnings to the prescribing physician, not the patient.  Id. at *8.  Plaintiff’s complaint failed to include any allegations about what plaintiff’s prescriber considered in deciding to prescribe the drug or whether plaintiff’s prescriber was provided adequate information.  Id. at *8-9.  Without such support for his claim, defendants argued, and the court agreed that plaintiff’s claim could not survive.

Plaintiff’s first argument in opposition was that the learned intermediary doctrine only applies to failure to warn claims.  But that, like limiting OJ to breakfast only, is too narrow a view.  The learned intermediary doctrine considers that a patient’s expectations about a drug are “those related to him by his physician, to whom the manufacturer directs the warnings.”  Id. at *10.  Thus, for any claim based on labeling, such as breach of warranty, “it is the prescribing doctor who in reality stands in the shoes of the ordinary consumer.”  Id.  Without allegations regarding the adequacy of the information provided to his doctor, plaintiff has not stated a claim for breach of implied warranty.  Id. at *11.

Plaintiff next tried the old switcheroo.  He wanted the court to turn his breach of warranty claim into a design defect claim.  But that argument had fatal flaws as well.  Chief among them, California does not recognize a claim for strict liability design defect for prescription drugs.  Id. And while a negligent design defect claim may be permitted, plaintiff had not alleged any claim based on negligence.  In his opposition to the motion to dismiss plaintiff frequently used language to suggest that he was arguing the risks of the drug outweighed its benefits, but none of that was in the complaint.  The court “decline[d] to dig through plaintiff’s complaint to craft a potential claim from thin air.”  Id. at *13.  Guessing whether or not plaintiff intended a negligence claim is not “fair notice” and therefore does not withstand federal pleadings requirements.

Moreover, plaintiff’s design defect argument also failed because plaintiff had no authority to support that the learned intermediary doctrine does not apply to design defect.  Switching the claim could not cure that plaintiff’s complaint lack allegations about the adequacy of the warning to the doctor.

Finally, plaintiff tried one more time to limit the learned intermediary rule arguing that it did not apply to economic loss claims.  But again, plaintiff had no legal support for his argument and the only California decision on the issue went the other way.  Id. at *14.  If OJ is an anytime drink, think of the learned intermediary as an any prescription drug defense.