A little knowledge is a dangerous thing. A jack of all trades is a master of none. These cutesy little phrases throw some derision toward one who possesses some knowledge in a bunch of areas. Representing drug and device companies in litigation can make a lawyer reject the negative interpretation of these phrases. We have

We have always thought that regulatory approval or clearance of a drug or medical device should weigh heavily against punitive damages, or even preclude punitive damages altogether.  An Arizona statute says exactly that, and now a trial court in Phoenix has applied that statute to dismiss punitive damages in a case involving a medical device

Skin in the game.  Horse in the race.  Dog in the hunt.  Whatever “it” is – we don’t have “it” in today’s case.  Ansley v. Banner Health Care is a suit brought by plaintiffs who had received damages awards for injuries that required treatment at various hospitals seeking to enjoin those hospitals from enforcing liens

We recently brought you the breaking news that the Arizona Supreme Court has adopted the learned intermediary doctrine in prescription drug cases.  The case is Watts v. Medicis Pharmaceutical Corp., No. cv-15-0065-PR, 2016 WL 237777 (Ariz. Jan. 21, 1016), and the Arizona Supreme Court’s unequivocal adoption of the doctrine allows us to check one more state off the list—the number stand at 37 states (plus D.C.) whose highest courts have adopted the LID.  (See our headcount here).

Having now had the opportunity to take a deeper dive, we can say that the Watts opinion is a solid endorsement of the learned intermediary doctrine and an artful explanation of the doctrine’s underpinnings.  But before we get there, we note that Bexis filed an amicus brief in support of adopting the doctrine.  On the other side, the lead author of an amicus brief for the trial lawyers was former Arizona Supreme Court Chief Justice Stanley G. Feldman.  Bexis versus the former Chief?  We like those odds.  We actually worked in Phoenix for a year following law school and became acquainted with Chief Justice Feldman while we clerked in the chambers next door.  This was in the mid-1990s, and while he was a polarizing figure even then because of his background as a plaintiffs’ advocate, we came to know him as a brilliant and vigorous individual.  On the learned intermediary doctrine, however, we don’t mind saying that the former Chief is wrong and that his successors (and Bexis) got it right.


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We’ve been following Watts v. Medicis Pharmaceutical Corp. ever since the Arizona Court of Appeals issued its bizarre ruling that the learned intermediary doctrine (“LID”), which has been adopted in almost every state, was somehow incompatible with the Uniform Contribution Among Tortfeasors Act (“UCATA”), which has been adopted in over half of the states – although no other jurisdiction following both ever thought so.  Fortunately, the Arizona Supreme Court granted review, which we hoped would lead to the 37th state high court adoption of the LID.

We weren’t disappointed.


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We’ve already discussed the peculiar decision in Watts v. Medicis Pharmaceutical Corp., 342 P.3d 847 (Ariz App. 2015), once, here.  This time, we don’t care much about the peculiar facts, but rather we’re directing ourselves to the court’s odd reasoning that somehow there’s a conflict between the learned intermediary rule (adopted at some level now in every American jurisdiction – see our “headcount” post here − and the Uniform Contribution Among Tortfeasors Act (“UCATA”).  Among the cases following the learned intermediary rule are four prior Arizona appellate decisions.  Davis v. Cessna Aircraft Corp., 893 P.2d 26, 38 (Ariz. App. 1994) (non-medical product), review denied (Ariz. April 25, 1995); Piper v. Bear Medical Systems, Inc., 883 P.2d 407, 415 (Ariz. App. 1993), review denied (Ariz. Nov. 1, 1994); Gaston v. Hunter, 588 P.2d 326, 340 (Ariz. App. 1978), review denied (Ariz. Nov. 21, 1978); Dyer v. Best Pharmacal, 577 P.2d 1084, 1087 (Ariz. App. 1978), review denied (Ariz. May 2, 1978).  In all four of these cases, the Arizona Supreme Court had the opportunity to evaluate the learned intermediary rule; all four times it passed and denied review.

Don’t be fooled by the 2007 date on our “headcount” post.  We’ve kept updating it.  Since we originally wrote that post in mid-2007, prompted by the terrible decision in State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007), two more state supreme courts have adopted the learned intermediary rule for the first time:  Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 154-59 (Tex. 2012); Rohde v. Smiths Medical, 165 P.3d 433, 438 (Wyo. 2007).  Two other state supreme courts have reaffirmed the learned intermediary rule since then, Wyeth, Inc. v. Weeks, ___ So.3d___, 2014 WL 4055813, at *19-20 (Ala. Aug. 15, 2014) (the only good thing about an otherwise awful opinion); Klasch v. Walgreen Co., 264 P.3d 1155, 1159 (Nev. 2011), as have two state intermediate courts of appeal.  O’Connell v. Biomet, Inc., 250 P.3d 1278, 1281-82 (Colo. App. 2010), cert. denied, 2010 WL 4851480 (Colo. Nov. 30, 2010); Silva v. SmithKlineBeecham Corp., 2013 WL 4516160, at *2-3 (N.M. App. Feb. 7, 2013).  In addition, federal courts have predicted the rule’s adoption in Rhode Island, where there used to be no law.  Greaves v. Eli Lilly & Co., 503 F. Appx. 70, 71-72 (2d Cir. 2012); Hogan v. Novartis Pharmaceuticals Corp., 2011 WL 1533467, at *9-10 (E.D.N.Y. April 23, 2011), and in South Dakota, reconfirming earlier predictions.  Schilf v. Eli Lilly & Co., 2010 WL 4024922 (D.S.D. Oct. 13, 2010).  Finally, as we’ve blogged about before, West Virginia federal courts have recently cut back Karl to drug DTC advertising cases.  See O’Bryan v. Synthes, Inc., 2015 WL 1220973, at *6-7 (S.D.W. Va. March 17, 2015); Wise v. C.R. Bard, Inc., 2015 WL 502010, at *4 (S.D.W. Va. Feb. 5, 2015); Tyree v. Boston Scientific Corp., ___ F. Supp.3d ___, 2014 WL 5431993, at *5-6 (S.D.W. Va. Oct. 23, 2014).

So even since Karl, the learned intermediary rule has been doing quite well for itself.


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