Thanks to Susan Sharko of Drinker for forwarding today's win in Hayes-Jones v. Ortho-McNeil Pharmaceutical, No. MID-L-3416-10, slip op. (N.J. Super. L.D. Aug. 3, 2012). It's late on a Friday afternoon, and we're trying to get out for vacation, but we liked it, so we think you will too.
Hayes-Jones is a failure to warn case under Virginia law. The facts are fairly complex because the decedent was a member of the military and several military prescribers were involved. Also plaintiff was on and off the product at various times over the years.
Basically, the defense swept the board on summary judgment. The warnings (dating from 2008) were adequate as a matter of law with respect to blood clots/pulmonary embolism, the alleged risk, because the risk was identified and and warned about in detail. Slip op. at 11-14. The prescribers who were deposed understood that risk very well. Id. at 14-18.
Since the plaintiff couldn't win on the facts, she launched a frontal assault on Virginia's learned intermediary rule. That assault failed in every aspect. The court rejected an exception for drugs where the FDA mandates direct to patient warnings. Slip op. at 19. That "exception" hasn't been adopted by any court in decades. The court also rejected a direct to consumer exception. Id. at 20. The court also held that there's no heeding presumption in Virginia. Id. at 21. Finally, the learned intermediary rule applies to subsequent as well as original prescribers. Id. at 21-22.
That's two good learned intermediary/warning causation decisions we learned about today. That takes some of the sting out of the loss in Schilf v. Eli Lilly & Co., No. 11-2082, slip op. (8th Cir. Aug. 3, 2012), which was more about how to read a particular physician's testimony than anything else.