The key to appreciating the latest order granting summary judgment for the defense in the Ortho-Evra birth control patch MDL is to start with the order’s last paragraph:
The Court has found that the Defendants provided adequate warnings sufficient to discharge their duty to warn. Because the Defendants exercised reasonable care by communicating the risks involved with the Ortho Evra® patch to [the plaintiff’s] physician, and those warnings were not faulty, [the plaintiff] has not established a claim of negligent misrepresentation under Tennessee law.
Brown v. Janssen Pharmaceuticals, Inc., No. 3:12-oe-40003, 2014 U.S. Dist. LEXIS 145415 (N.D. Ohio Oct. 10, 2014). Ah, the familiar ring of the learned intermediary doctrine, the beat to which the Drug and Device Law Blog most often marches. But what’s this? The doctrine applied to negligent misrepresentation? Some background is in order: The plaintiff in Brown alleged that her use of hormonal contraceptives caused blood clots, which is one of the most widely known drug risks ever known to medical science. As we said when we first reported on this case, every doctor and medical student knows about the risk—so do most women—and the labeling for hormonal contraceptives has fully disclosed the risk of clots for decades.
The defendants therefore moved for judgment on the pleadings, which the district court granted on the failure-to-warn claims back in April 2014. See Brown v. Janssen Pharmaceuticals, Inc., No. 3:12-oe-40003, 2014 U.S. Dist. LEXIS 57319 (N.D. Ohio Apr. 24, 2014). This was absolutely the correct result as far as it went, but there were still several claims left over—manufacturing defect, negligence, and fraud.