learned intermediary doctrine in Texas

2012The physician has the duty as the learned intermediary to make an individualized balancing of the risks and benefits of any prescription drug contemplated for a particular patient and to advise the patient of possible adverse reactions.”); see also Medrano, 28 S.W.3d at 92 (rejecting the contraceptive and DTC advertising exceptions where the patient received the Norplant implant from an advanced practice nurse because "DQrrespective of the origin of the [allegedly inadequate warning or misleading information], it still went through the learned intermediary to get to [the patient],” and, theref

2010Co. v. Medrano, 28 S.W.3d 87, 91 (Tex.App.-Texarkana 2000, no pet.) (“The learned intermediary doctrine states that, in some situations, a warning to an intermediary fulfills a supplier’s duty to warn ultimate consumers.”) (citing Alm, 717 S.W.2d at 591 ).

2012See, e.g., Gravis v. Parke-Davis & Co., 502 S.W.2d 863, 870 (Tex.Civ.App.-Corpus Christi 1973, writ ref'd n.r.e.).

2004Id. at 591 (citing Cooper v. Bowser, 610 S.W.2d 825, 830-31 (Tex.Civ.App.-Tyler 1980, no writ), and Gravis v. Parke-Davis and Co., 502 S.W.2d 863, 870 (Tex.Civ.App.-Corpus Christi 1973, writ ref'd n.r.e.)).Under that doctrine, “when a drug manufacturer properly warns a prescribing physician of the dangerous propensities of its product, the manufacturer is excused from warning each patient who receives the drug.” Id.

2010Co. v. Medrano, 28 S.W.3d 87, 91 (Tex. App.–Texarkana 2000, no pet.) (“The learned intermediary doctrine states that, in some situations, a warning to an intermediary fulfills a supplier's duty to warn ultimate consumers.”) (citing Alm, 717 S.W.2d at 591 ).

2010Co. v. Medrano, 28 S.W.3d 87, 91 (Tex.App.-Texarkana 2000, no pet.) (“The learned intermediary doctrine states that, in some situations, a warning to an intermediary fulfills a supplier’s duty to warn ultimate consumers.”) (citing Alm, 717 S.W.2d at 591 ).

2012See also Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455, 467 (Tex.App.-Austin 2000, pet. denied) (applying the learned intermediary doctrine to shield pharmacists from an independent duty to warn of dangers associated with prescription drugs); Guzman v. Synthes (USA), 20 S.W.3d 717 , 720 n. 2 (Tex.App.-San Antonio 1999, pet. denied) (‘‘[W]here, as here, the product is meant only for administration by a physician, the physician is integrally involved in deciding what type of medical device to use on the patient, and the physician is in a better position than the patient to understand the danger

2012See also Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455, 467 (Tex.App.-Austin 2000, pet. denied) (applying the learned intermediary doctrine to shield pharmacists from an independent duty to warn of dangers associated with prescription drugs); Guzman v. Synthes (USA), 20 S.W.3d 717 , 720 n. 2 (Tex.App.-San Antonio 1999, pet. denied) (‘‘[W]here, as here, the product is meant only for administration by a physician, the physician is integrally involved in deciding what type of medical device to use on the patient, and the physician is in a better position than the patient to understand the danger

2012See, e.g., Reyes, 498 F.2d at 1276-79, 1295 (applying Texas law and holding that the learned intermediary doctrine did not apply in the context of mass polio vaccine inoculations that were administered in the absence of a physician-patient relationship and that were "unavoidably unsafe,” requiring "either a warning — meaningful and complete so as to be understood by the recipient — or an individualized medical judgment that this treatment or medication is necessary and desirable for this patient”).

1986The rationale supporting the learned intermediary exception to the manufacturer’s duty to warn the consumer in products liability cases is well stated in Reyes v. Wyeth, Laboratories, 498 F.2d 1264, 1276 (5th Cir.1974): Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect.

2010Rev. 1333 , 1338 (2001) (citing 42 U.S.C. § 300aa-22(c)); see also In re Swine Flu Immunization Program , 533 F. Supp. 703, 717 (D.

2010Intennediary Rule in the Case of Direct-to-Consumer Advertising of Prescription Drugs, 42 S. Tex. L.Rev. 1333, 1338 (2001) (citing 42 U.S.C. § 300aa-22(c)); see also In re Swine Flu Immunization Products Liability Litigation, 533 F.Supp. 703, 717 (D.Utah 1982) (discussing the Swine Flu Act and that it resulted because drug manufacturers refused to sell swine-flu vaccinations unless the government provided liability protection). 17 .

2004Id. at 591 (citing Cooper v. Bowser, 610 S.W.2d 825, 830-31 (Tex.Civ.App.-Tyler 1980, no writ), and Gravis v. Parke-Davis and Co., 502 S.W.2d 863, 870 (Tex.Civ.App.-Corpus Christi 1973, writ ref'd n.r.e.)).Under that doctrine, “when a drug manufacturer properly warns a prescribing physician of the dangerous propensities of its product, the manufacturer is excused from warning each patient who receives the drug.” Id.

2004Id. at 591 (citing Cooper v. Bowser, 610 S.W.2d 825, 830-31 (Tex.Civ.App.-Tyler 1980, no writ), and Gravis v. Parke-Davis and Co., 502 S.W.2d 863, 870 (Tex.Civ.

2012More recently, we addressed the learned intermediary doctrine’s relevance in Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 ,- 185-96 (Tex.2004).

2012As in Aim , we again recognized in Humble Sand that other courts have applied the learned intermediary doctrine within the prescription drug context and explained: “The rationale for this ‘learned intermediary’ rule is not that a direct warning from manufacturers to patients is infeasible, in the practical, physical sense of that word, but that it is better for the patient for the warning to come from his or her physician.” Id. at 190-91; see also Restatement (Third) of Torts: Products Liability § 6 cmt. b (“The rationale supporting this ‘learned intermediary’ rule is that only health-care pro

2012(Norplant I), 955 F.Supp. 700 , 707 (E.D.Tex.1997), aff'd, 165 F.3d 374 (5th Cir. 1999) ("This court finds that there is no principled distinction to be drawn between prescription contraceptives and other prescription drugs insofar as application of the learned intermediary doctrine is concerned, as long as a physician is involved.

2000See In re Norplant, 955 F.Supp. at 705-06, citing Hurley, 863 F.2d at 1178-79 . 5 We hold that the learned intermediary doctrine does apply to this prescription contraceptive case; however, we must now determine if it should be applied to all of Medrano’s causes of action.

2012Cf. Karl, 647 S.E.2d at 913 (decided after Beale and adopting Perez’ s reasoning but, instead of adopting a DTC exception to the doctrine, rejecting the learned intermediary doctrine entirely).

2012Johnson & Johnson Corp. v. Karl, the West Virginia Supreme Court relied on the Perez court’s reasoning to reject the learned intermediary doctrine entirely: “Given the plethora of exceptions to the learned intermediary doctrine, we ascertain no benefit in adopting a doctrine that would require the simultaneous adoption of numerous exceptions in order to be justly utilized.” Id. at 910-11, 913.

2012Cf. Crocker, 514 S.W.2d at 433 (“Whatever the danger and state of medical knowledge, and however rare the susceptibility of the user, when the drug company positively and specifically represents its product to be free and safe from all dangers of addiction, and when the treating physician relies upon that representation, the drug company is liable when the representation proves to be false and harm results.”). .

2000The warning still must be adequate, and if “the warning to the intermediary is inadequate or misleading, the manufacturer remains liable for injuries sustained by the ultimate user.” Alm, 717 S.W.2d at 592 , citing Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801 (Tex.1978); Crocker v. Winthrop Lab., 514 S.W.2d 429 (Tex.1974).

2012The Hamiltons rely heavily on the appellate court’s holding in Coleman v. Cintas Sales Corp., 40 S.W.3d 544, 551-52 (Tex. App.-San Antonio 2001, pet. denied).

2012Id. at 549 .

2012Court of Appeals Centocor timely appealed, arguing first that the learned intermediary doctrine precluded the Hamiltons’ recovery because, as a matter of law, Centocor’s warnings to Patricia’s prescribing physicians were adequate and Centocor had no duty to warn Patricia directly. 12 310 S.W.3d 476, 499 (Tex.App.-Corpus Christi 2010).

2012Relying on reasoning from the New Jersey Supreme Court’s opinion in Perez v. Wyeth Laboratories, 161 N.J. 1 , 734 A.2d 1245 , 1246^47 (1999), the court of appeals adopted “an exception to the learned intermediary doctrine when a drug manufacturer directly advertises to its consumers in a fraudulent manner.” 310 S.W.3d at 480-81 .

2012Edwards v. Basel Pharm., 933 P.2d 298, 301 (Okla.1997).

2012Corp., 358 Mont. 474 , 247 P.3d 244, 257 (2010), cert. denied, —■ U.S. --, 131 S.Ct. 2938 , 180 L.Ed.2d 226 (2011); Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552 , 618 N.W.2d 827, 841-42 (2000); Allison v. Merck & Co., 110 Nev. 762 , 878 P.2d 948 , 958 n. 16 (1994) (plurality opinion), 878 P.2d at 969 (Rose, C.J., dissenting) (also following the learned intermediary doctrine); Perez, 734 A.2d at 1257 (applying the doctrine but adopting a DTC advertising exception); Spensieri v. La-sky, 94 N.Y.2d 231 , 701 N.Y.S.2d 689 , 723 N.E.2d 544, 549 (1999); Howland v. Purdue Pharma L.P., 104 Ohio St.3

2012Additionally, a few courts have also recognized other less common exceptions for (1) contraceptive devices, see, e.g., Hill v. Searle Labs., 884 F.2d 1064 , 1070-71 (8th Cir.1989); (2) overpro-moted drugs, see, e.g., Proctor v. Davis, 291 Ill.App.3d 265 , 225 Ill.Dec. 126 , 682 N.E.2d 1203, 1215 (1997), appeal denied, 175 Ill.2d 553 , 228 Ill.Dec. 725 , 689 N.E.2d 1146 (1997); and (3) drugs withdrawn from the market, see, e.g., Nichols v. McNeilab, Inc., 850 F.Supp. 562, 565 (E.D.Mich.1993).

2012But cf. Murthy v. Abbott Labs., 847 F.Supp.2d 958 (S.D.Tex. 2012) (citing cases that rejected Perez, but relying on the appellate court’s holding in Cen-tocor to hold that Texas law recognizes a DTC advertising exception); see also Beale v. Biomet, Inc., 492 F.Supp.2d 1360, 1376 (S.D.Fla.2007) (“Since Perez was decided, no court — including any Florida court — has recognized the DTC exception to the learned intermediary doctrine, and several courts have expressly rejected the DTC exception.”).

2012Id. at 709; see Ebel, 536 F.Supp.2d at 773 (applying Texas law) (“Where the crux of the suit is based on a failure to adequately warn, the learned intermediary doctrine may apply to strict liability, negligence, misrepresentation, and breach of warranty claims.”); see also Beale, 492 F.Supp.2d at 1372 (applying Florida law) (adopting Norplant F s reasoning and listing other jurisdictions that have applied the learned intermediary doctrine to all claims premised on the prescription drug manufacturer’s alleged failure to warn); Stafford v. Wyeth, 411 F.Supp.2d 1818 , 1319-20 (W.D.Okla.2006) (rec

2012See Vitanza, 778 A.2d at 846 (citing Sterling Drug, Inc. v. Cornish, 370 F.2d 82, 85 (8th Cir.1966), as the first case to adopt the doctrine).

2012See, e.g., Gravis, 502 S.W.2d at 870 ; Cornish, 370 F.2d at 85 .

2012See, e.g., Springhill Hosps., Inc. v. Latrimore, 5 So.3d 513, 517-18 (Ala.2008); Shanks v. Upjohn Co., 835 P.2d 1189 , 1200 & n. 17 (Alaska 1992); West v. Searle & Co., 305 Ark. 33 , 806 S.W.2d 608, 613-14 (1991); Brown v. Superior Court, 44 Cal.3d 1049 , 245 Cal.Rptr. 412 , 751 P.2d 470 , 477 n. 9 (1988); Vitanza v. Upjohn Co., 257 Conn. 365 , 778 A.2d 829, 836-39 (2001); Lacy v. G.D.

2012(Norplant II), 165 F.3d 374, 379 (5th Cir.1999) (applying Texas law) ("[A]s long as a physician-patient relationship exists, the learned intermediary doctrine applies.”); Hurley v. Lederle Labs.

2012(Norplant I), 955 F.Supp. 700 , 707 (E.D.Tex.1997), aff'd, 165 F.3d 374 (5th Cir. 1999) ("This court finds that there is no principled distinction to be drawn between prescription contraceptives and other prescription drugs insofar as application of the learned intermediary doctrine is concerned, as long as a physician is involved.

2012See, e.g., Achermann v. Wyeth Pharm., 526 F.3d 203, 207-08 (5th Cir.2008) (“The learned-intermediary doctrine is not an affirmative defense.

2012See, e.g., Achermann v. Wyeth Pharm., 526 F.3d 203, 207-08 (5th Cir.2008) (“The learned-intermediary doctrine is not an affirmative defense.

2012Corp., 358 Mont. 474 , 247 P.3d 244, 257 (2010), cert. denied, —■ U.S. --, 131 S.Ct. 2938 , 180 L.Ed.2d 226 (2011); Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552 , 618 N.W.2d 827, 841-42 (2000); Allison v. Merck & Co., 110 Nev. 762 , 878 P.2d 948 , 958 n. 16 (1994) (plurality opinion), 878 P.2d at 969 (Rose, C.J., dissenting) (also following the learned intermediary doctrine); Perez, 734 A.2d at 1257 (applying the doctrine but adopting a DTC advertising exception); Spensieri v. La-sky, 94 N.Y.2d 231 , 701 N.Y.S.2d 689 , 723 N.E.2d 544, 549 (1999); Howland v. Purdue Pharma L.P., 104 Ohio St.3

2012Corp., 358 Mont. 474 , 247 P.3d 244, 257 (2010), cert. denied, —■ U.S. --, 131 S.Ct. 2938 , 180 L.Ed.2d 226 (2011); Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552 , 618 N.W.2d 827, 841-42 (2000); Allison v. Merck & Co., 110 Nev. 762 , 878 P.2d 948 , 958 n. 16 (1994) (plurality opinion), 878 P.2d at 969 (Rose, C.J., dissenting) (also following the learned intermediary doctrine); Perez, 734 A.2d at 1257 (applying the doctrine but adopting a DTC advertising exception); Spensieri v. La-sky, 94 N.Y.2d 231 , 701 N.Y.S.2d 689 , 723 N.E.2d 544, 549 (1999); Howland v. Purdue Pharma L.P., 104 Ohio St.3

2012See Reyes v. Wyeth Labs., 498 F.2d 1264 , 1276 (5th Cir.1974), cert. denied, 419 U.S. 1096 , 95 S.Ct. 687 , 42 L.Ed.2d 688 (1974).