Dismissing Pharmacy Defendants

While it may not be immediately obvious, the dismissal of pharmacy defendants from drug cases is almost always a good thing. 

The dismissals are often based on the learned intermediary doctrine, which says that a drug manufacturer’s obligation to warn about risks of its prescription medications runs to the doctors, not patients.  The doctrine recognizes the importance of the doctor-patient relationship under which such medications are prescribed.  Pharmacies are not part of that relationship.  So the law avoids putting on them a duty to warn customers about general medication risks.  It could erode the doctor-patient relationship.  Additionally, plaintiff’s lawyers often name pharmacists as defendants to defeat diversity jurisdiction.  So their dismissal, or imminent dismissal, is also a good thing.  It can be the basis for removal. 

We  saw yet another example of this in the Nevada courts, in Baymiller v. Ranbaxy Pharma. Inc., 2012 U.S. Dist. LEXIS 94339 (D. Nev. July 9, 2012).  The plaintiffs sued a whole host of pharmaceutical companies  and two pharmacies.  Id. at *1-3.  One of  the pharmaceutical defendants removed.  Id. at *1.  Once in federal court, the plaintiffs voluntarily dismissed all but one manufacturer and the two pharmacies.  Id. at *9-10.  Those pharmacies moved to dismiss. 

The court granted the motion on the basis of the learned intermediary doctrine:

In Klasch v. Walgreen Co., 264 P.3d 1155 (Nev. 2011), the Nevada Supreme Court addressed the duty of care that a pharmacist owes his or her customers.  Id. at 1156.  In doing so, the Nevada Supreme Court explicitly adopted the learned-intermediary doctrine in the context of pharmacist/customer tort litigation and held that pharmacists have no duty to warn of a prescribed medication’s generalized risks inherent in the prescriptions they fill.  Id. at 1157-59.  This doctrine “prevents pharmacists from constantly second-guessing a prescribing doctor’s judgment simply in order to avoid his or her own liability to the customer.”  Id. at 1159.  However, when a pharmacist has knowledge of a customer-specific risk, the pharmacist has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of the customer-specific risk.  Id. at 1158, 1160.

In this case, the Court grants [the pharmacy’s] motion to dismiss all claims stated against it without leave to amend.  There is nothing in the complaint that alleges that [the pharmacy] had any knowledge of customer-specific risks related to [plaintiff]. As such, [the pharmacist] had no duty to warn [plaintiff] of the generalized risks inherent in her [medications].

Id. at *14-15. 

That’s a pretty good description of it. 

Now, it’s not immediately clear from the opinion that the pharmacies were named as defendants because their residences would defeat diversity jurisdiction.  But we wouldn’t be surprised if they were. 

In any event, the case started out in state court and with two pharmacy defendants.  Now it’s in federal court.  And the pharmacies have been dismissed.  As we said, that’s almost always a good thing.

Nevada Formally Adopts The Learned Intermediary Rule

When you add together the plurality (p. 958 n.16)  and one of the dissents (p. 969) in Allison v. Merck & Co., 878 P.2d 948 (Nev. 1994), there's a majority in favor of the learned intermediary rule.  Thus, we've included Nevada in our post that lists all of the states adopting the rule,  Still, when we have to mix and match like that, there's a little doubt in the back of our minds that we're not on as sound ground as we might have liked.

No longer.  In Klasch v. Walgreen Co., ___ P.3d ___, 2011 WL 5878054 (Nev. Nov. 23, 2011), we got a little Black Friday gift from the Nevada Supreme Court.  Without even mentioning Allison, the court formally adopted the rule - this time unanimously - and, in the same case, extended it to pharmacists:

Traditionally, the learned-intermediary doctrine has been used to insulate drug manufacturers from liability in products-liability lawsuits.  Under the learned-intermediary doctrine, a drug manufacturer is immune from liability to a patient taking the manufacturer's drug so long as the manufacturer has provided the patient's doctor with all relevant safety information for that drug.  It is then up to the patient's doctor—who has the benefit of knowing the patient's specific situation—to convey to the patient any information that the doctor deems relevant.


Jurisdictions adopting the learned-intermediary doctrine in the context of pharmacist/customer tort litigation have put forth a similar rationale:  that between the doctor and the pharmacist, the doctor is in the best position to warn the customer of a given medication's generalized risks.  Or, viewed more pragmatically, the doctrine prevents pharmacists from constantly second-guessing a prescribing doctor's judgment simply in order to avoid his or her own liability to the customer.  In this sense, the learned-intermediary doctrine preserves the pharmacist's role as a conduit for dispensing much-needed prescription medications.

Because we believe that these public-policy considerations are sound, we adopt the learned-intermediary doctrine in the context of pharmacist/customer tort litigation.  Accordingly, Nevada pharmacists have no duty to warn their customers of the generalized risks inherent in the prescriptions they fill.

2011 WL 5878054, at *3 (footnotes to out-of-state learned intermediary cases omitted).

All is not sweetness and light, however, in Klasch - at least not for pharmacies.  The court holds that pharmacies having actual knowledge of a "customer-specific risk" can be liable for not notifying either the doctor or the customer of that risk.  Id. at *5.  Although the facts look pretty bad for the plaintiff (the doctor prescribed with knowledge of the alleged risk, id. at *1), that wasn't the basis of the pharmacy's summary judgment motion, so the court reversed while practically inviting the defendant to try again on a fuller record.  Id. at *5-6. 

Finally, Some Good Propofol News

We have to admit the news has been pretty dreary out of the Nevada Propofol litigation recently.  As far as the state litigation is concerned, we can only hope that the defendants do better on appeal than in the trial court (it would be hard to do worse).


There was some good news, however, from the federal side of the litigation – demonstrating once again the wisdom of removal. At least there won’t be any class action.  See Rader v. Teva Parenteral Medicines, Inc., No. 2:10-cv-00818 (JCM) (RJJ), slip op. (D. Nev. Oct. 5, 2011).

The plaintiff alleged that he was one of over 60,000 patients who had been “exposed to a risk of possible exposure to blood-borne pathogens due to unsafe injection practices” at a certain medical clinic.  Slip op. at 2.  Oddly, but predictably, plaintiff did not sue the actual perpetrators of these “unsafe” practices (who were already criminally prosecuted), but only the makers of the Propofol, who allegedly committed the heinous act of selling the drug in containers of a size approved by the FDA.  The drug was perfectly sterile until the incompetent doctors got ahold of it.

This just shows how kooky litigation has gotten these days.  Doctors don’t sterilize their instruments and who gets sued?  The drug that was used in the procedure.

Very predictably, the putative class representative didn’t allege any injury at all – or even actual exposure – only a “risk” of exposure.  He wanted some sort of testing, slip op. at 3, which was another of the problems with the litigation, since Nevada rejects medical monitoring as a cause of action.  Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001).  See Slip op. at 8.  The only common issue we see is whether the plaintiff should be subject to Rule 11 sanctions.

But we digress.

Class certification was denied on numerous grounds:

(1) The class definition was garbage.  The mere fact of membership in the supposed class could not be determined without an individualized inquiry – indeed, no fewer than five individualized questions had to be answered before class membership alone could be ascertained, which must be some sort of record.  Slip op. at 5-6.

(2) The class representative was inadequate.  Specifically he was a bankrupt who no longer had standing to bring any claims, as they were now the property of the bankruptcy estate.  Slip op. at 6.  We’d be interested to know whether he listed the claim as an asset in his bankruptcy filings, since most plaintiffs we’ve seen in similar situations don’t do that either.

(3) The class representative was doubly inadequate.  Not only was he a deadbeat, but he split his causes of action, opting only for the no-injury claims (that don’t exist under Nevada law), and thus exposing everyone else to losing other claims for more important (if less amenable to class action treatment) injuries.  Slip op. at 6-7.

(4) Common issues did not predominate. There were scads of individual issues:  product exposure, disease exposure, product identification, differences in product characteristics, alternative causation, differing treatments, differing exposures, and damages, to name a few.  Slip op. at 7-8.

(5) Emotional distress damages, as a matter of law, are not amenable to class action treatment.  Slip op. at 9.

We’ll be adding Rader to our ever lengthening cheat sheet of class action denials (federal division).