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.
Also widely adopted – although not nearly as prevalent as the learned intermediary rule – is UCATA, which was first promulgated by the Uniform Law Commission in 1939, and significantly revamped in 1955. According to the ULC’s website, UCATA was adopted in 22 states. In 2002, UCATA was superseded by something called the “Uniform Apportionment of Tort Responsibility Act,” which the ULC indicates, has yet to be adopted anywhere.
In Watts the court took the rather startling – at least to us – position that there was a conflict between UCATA, or at least Arizona’s version of it, and the learned intermediary rule. We searched in vain for any prior decision finding a conflict between UCATA and the learned intermediary rule. The two had never before even been cited in the same opinion, anywhere, let alone found to conflict. The rationale in Watts thus comes completely out of left field.
According to the Watts court, UCATA wasn’t adopted in Arizona until 1984, nearly thirty years after the ULC approved it as a uniform law. 324 P.3d at 854. UCATA did nothing more than provide for contribution among tortfeasors all held liable for some part of a plaintiff’s damages. Id.
That didn’t last long.
In 1987 the Arizona UCATA “was amended to abolish joint liability between co-defendants in most circumstances,” including product liability. Id. Under this new several liability-only regime, “each co-defendant in a tort case [is] liable for no more than his or her respective percentage of fault.” Id. Defendants are only liable “for their own actions in distributing the defective product.” Id.(citation and quotation marks omitted). In other words, the 1987 amendment was intended to reduce liability
So how could all this impair the learned intermediary rule, which also reduces liability? As indicated above, the two more recent of the four Ariz. App. decisions that had unanimously adopted and applied the learned intermediary rule, Davis v. Cessna and Piper v. Bear, were handed down in the mid-1990s – well after the last amendment to UCATA that Watts relies upon.
As mentioned above, there is no Arizona Supreme Court decision (yet – Watts may well produce one) concerning the rule, but theWatts court took it upon itself to “depart from this court's prior holdings applying the learned intermediary doctrine." 324 P.3d at 856. That’s not something that an intermediate appellate court is supposed to do lightly, if at all, absent a change in controlling precedent – which obviously hasn’t occurred since Davis in 1994 and Piper in 1993. The four prior Ariz. App. decisions that Wattsignored are “highly persuasive and binding, unless [a court is] convinced that the prior decisions are based upon clearly erroneous principles, or conditions have changed so as to render these prior decisions inapplicable.” Scappaticci v. Southwest Savings & Loan Ass’n, 662 P.2d 131, 136 (1983) (citation and quotation marks omitted). “[W]e should do so only upon the most cogent of reasons being presented.” State v. Patterson, 218 P.3d 1031, 1037 (Ariz. App. 2009) (citation and quotation marks omitted).
Watts “consider[ed] the continued viability of the doctrine in light of UCATA’s approach to allocating liability.” 324 P.3d at 854. It “conclude[d] that protecting a prescription drug manufacturer from possible liability for its own actions in distributing a product, simply because another participant in the chain of distribution is also expected to act, is inconsistent with UCATA.” Id. The phrase the court used, “expected to act,” is an odd one in this context. One would have expected “negligent,” or “at fault,” or even “acted.” Expectations are not something on which apportionment of liability is ordinarily based.
One wonders whether the Watts court believed that UCATA somehow abolished superseding cause – the concept that a second, more proximate act of negligence (or fault) acted in such a way as to render the prior act of negligence (or fault) incapable of causing harm under the facts of the case. Watt accurately states that “[u]nder the learned intermediary doctrine, however, a prescribing physician may bear all of the responsibility when a consumer is given an inadequate warning about a drug, even when a manufacturer played some role in making that warning insufficient.” 324 P.3d at 854. There are a number of ways that this happens:
In Dyer, for example, the plaintiff contended that a drug should not have been marketed for a particular use. 577 P.2d at 1086. However, the drug was also contraindicated for a condition that the plaintiff had, and that contraindication was accurate. Id. at 1085. So what happened is the prescriber ignored an adequate warning, which cut off causation because, if the warning had been followed (regardless of what other fault there might have been), the plaintiff would not have been injured. Id. at 1088 (“a drug manufacturer cannot be required legally to foresee that a licensed physician will disregard express warnings regarding a drug’s use”).
Another way of severing causation is when the learned intermediary already knows the risk information that an adequate warning would have provided, so that the warning’s alleged inadequacies didn’t matter. That is one reading of Davis v. Cessna Aircraft Corp., 893 P.2d 26 (Ariz. App. 1994), a non-medical learned intermediary decision mentioned in Watts, sinceDavis held that “[the learned intermediary], a leading manufacturer of aircraft, understood the possible consequences” of the hazard at issue. 893 P.3d at 38 (the other possible reading of Davis is that the warning was adequate). Neither of the remaining two Ariz. App. cases involved causation-based defenses. The warning in Gaston was adequate as a matter of law. 588 P.2d at 340-41 (“Plaintiff has failed to show inadequacy of [the] warnings”). Piper affirmed a plaintiff’s verdict, finding that inadequate warnings were causal. 883 P.2d at 415.
Another common way that a learned intermediary’s conduct can cut off liability for an inadequate warning is if the warning’s recipient doesn’t read it at all. As we pointed out in our prior 50-state survey post on this subject, that fact pattern has never been presented by an Arizona learned intermediary case, but is well-established generally. In Gosewisch v. American Honda Motor Co., 737 P.2d 376 (Ariz. 1987), the plaintiff himself admitted never reading the allegedly inadequate product owner’s manual, and the court agreed that, because of this failure, “it cannot be said that a failure to warn was a proximate cause of the injury.”
Ordinarily, what constitutes the proximate cause of an injury is a question of fact. However, the jury is not entitled to make a decision absent a proper evidentiary foundation. Because of the absence of any testimony, the jury would have been forced to speculate whether the alleged informational defect was a proximate cause of [plaintiff’s] injury. . . .
. . .[E]ven with the benefit of [a heeding] presumption, [plaintiff] would not have proved that the alleged failure to warn was a proximate cause of his injury. The undisputed evidence would have rebutted the presumption as a matter of law. A label affixed to the [product] warned the operator to “READ OWNER'S MANUAL CAREFULLY”. . . . [Plaintiff] testified that he requested but did not receive the [product’s] owner’s manual. . . .
Id. at 380 (citation omitted).
Interestingly, quite apart from warnings, Gosewisch also considered a design defect/misuse issue and reversed a defense verdict on that issue. Id. at 381-83. In Jimenez v. Sears, Roebuck & Co., 904 P.2d 861 (Ariz. 1995), the court held that the misuse aspect of Gosewisch was superseded by none other than UCATA. Id. at 865. With respect to UCATA, the court held that “misuse” (which had itself been codified), was no longer an “all-or-nothing” defense, as it had been under both the common law and then under Gosewisch, because “misuse” was statutorily included as a comparative defense in UCATA. Jimenez, 904 P.2d at 866 (“[b]y later [in the 1987 amendment] including misuse as a category of fault to be apportioned in a products liability case and by abolishing joint-and-several liability, the legislature made misuse a species of comparative fault”).
Conversely, the legislature has not – in any version of UCATA − included “superseding cause” within any of the concepts made subject to comparative fault. UCATA currently defines “fault” as:
an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.
Ariz. Rev. Stat. §2506(F)(2). Indeed, “superseding cause” was mentioned explicitly in Jimenez. A “superceding cause” was something that “if proved, barred recovery because the defendant's fault in distributing a defective product did not cause the plaintiff’s injuries.” 904 P.3d at 865; see id. at n.3 (“an intervening force becomes a superseding cause” when “unforeseeable” as well as “abnormal or extraordinary”).
Jimenez could have reached the same result much more easily by ruling that UCATA subsumed superseding cause. The court couldn’t, because the statute did not mention it. “[W]e should not conjure up legislative intent without some clear pronouncement from the legislature, we reject the suggestion that we should give no effect to the explicit text of a statute that modifies our interpretation of a different but earlier statute dealing with the same matter.” Id. at 866. The legislative intent conjured inWatts is indeed peculiar – that a UCATA amendment intended toreduce the scope of liability would instead increase liability by knocking out the learned intermediary rule.
Superseding cause remains the law of Arizona. E.g., Gipson v. Kasey, 150 P.3d 228, 234 (Ariz. 2007) (“[a plaintiff’s] own actions may reduce recovery under comparative fault principles or preclude recovery if deemed a superseding cause of the harm”);Gunnell v. Arizona Public Service Co., 46 P.3d 399, 403-04 (Ariz. 2002) (“[i]f the [contractor’s] negligence were a superseding cause of the third party’s injury, the owner’s negligence would not be a contributing cause and the owner would never be liable”);McMurtry v. Weatherford Hotel, Inc., 293 P.3d 520, 525 (Ariz. App. 2013) (plaintiff’s conduct in “exit[ing] the window . . . was an intervening and superseding cause of her death” because the “window was an open and obvious danger requiring no warnings”). Since UCATA didn’t abolish superseding cause, it can’t conflict with the learned intermediary rule’s applications of superseding cause.
The rationale in Watts is fundamentally inconsistent with the approach to UCATA taken in Jimenez − which Watts, surprisingly (or maybe not), fails to cite at all – because Watts treats superseding cause under the learned intermediary rule as if UCATA abolished that concept.
[T]he learned intermediary doctrine precludes a complete assessment of comparative fault among tortfeasors because it preemptively limits the scope of a manufacturer’s duty. As such, applying the learned intermediary doctrine in the context of prescription pharmaceuticals conflicts with both UCATA and the holding of Premier Manufactured Systems that each defendant in a tort case is liable for his or her own respective share of fault, no more and no less.
342 P.3d at 854. As long as the prescriber’s actions don’t amount to a superseding cause, then there’s no “scope” limitation by virtue of the learned intermediary rule.
An inadequate warning still entitles the end user – the intermediary’s patient – to sue the drug/device manufacturer directly. Manufacturer liability (in a warning case) is only cut off by two things: (1) an adequate warning, in which case there is no fault to begin with, or (2) physician conduct amounting to superseding cause, in which case the inadequate warning is 100% non-causal. The UCATA requirement that “each [defendant] is liable solely for its own conduct,” State Farm Insurance Cos. v. Premier Manufactured Systems, Inc., 172 P.3d 410, 414 (Ariz. 2007), remains intact. UCATA has never been read to require liability for non-causal fault.
Watts found “support” for its “conclusion” that ignores superseding cause in cases dealing with direct to consumer advertising. 325 P.3d at 355. In such situations, while “a patient must first receive a prescription from a ‘learned intermediary’ in order to obtain prescription drugs, a physician no longer is necessarily the consumer's sole source of information.” Id. That’s true, but of no real significance to causation. DTC advertising does not alter the prescription-only nature of such products. Unless the doctor agrees to prescribe, all the DTC advertising in the world isn’t going to be causal (short of a patient illegally obtaining medication without a prescription).
Because of that simple fact – prescription medical products remain available by prescription only – DTC advertising fits smoothly into the existing causation framework. We discussed this before in our Already DTC (Done Through Causation) postthat we wrote in connection with what later became the TexasCentocor v. Hamilton decision mentioned above. Here’s a truncated version of what we said then:
We personally doubt that doctors are patsies in the face of patient demands, . . . but even assuming that the supine-physician scenario exists, so what? Under that rationale, there’s no reason whatsoever to adopt a blanket exception to the learned intermediary rule for DTC advertising. The existing requirement of warning causation under the learned intermediary rule is perfectly capable of handling this described situation . . . .
Causation in a learned intermediary case means proving that the doctor in some way relied upon the inadequate information in a drug/device warning while deciding to put the plaintiff on the product. Otherwise the plaintiff loses. In Hamilton, for instance, there was no way for plaintiff to prove causation because the doctors who prescribed the drug both testified that they already knew about the risk in question, discussed it with the plaintiff, and elected to prescribe anyway. . . .
If the facts were otherwise, a plaintiff wouldn’t need to resort to the DTC exception at all. If there was some inadequacy (whatever it might be) in DTC advertising that helped motivate a patient to go to his/her doctor and hector the doctor until the doctor rolled over and prescribed the drug/device, then under standard warning causation principles as routinely applied with the learned intermediary rule, the case goes to the jury on causation. That’s because in the supine physician situation . . . the defect in fact caused (albeit indirectly, through motivating the patient to confront the doctor) the doctor to modify his/her prescribing decision from what it would otherwise have been.
So the DTC exception is totally unnecessary in the supine physician situation for which courts claim that it’s been created: where assertive patients, influenced by DTC advertising, force changes in the prescription decisions made by their doctors. That scenario, like other forms of indirect causation (one doctor telling another; overpromotion; misleading medical articles, etc.), is already encompassed by the warning causation element of the intact learned intermediary rule. If the defect – some inadequacy in the DTC advertising – in fact causes the patient to do something that in turn causes the doctor to prescribe the drug/device when otherwise s/he wouldn't, then there’s a jury submissible case under the learned intermediary rule.
Putting the same concept in the context of Watts, no superseding cause exists if DTC advertising with inadequate warnings (or some other informational defect) in fact influences a physician’s prescription decision – even indirectly because by prompting patients to engage in drug-seeking behavior. UCATA is not violated and everyone is assessed his/her/its share of causal fault. Only when the DTC advertising is non-causal would an “exception” to the learned intermediary rule change the result. As we said in the prior post::
As compared to current law, a blanket DTC exception only helps plaintiffs who have no right to expect assistance from the law – those whose prescriptions weren’t, in fact, affected by any DTC advertising. Maybe: (1) they weren’t exposed to DTC advertising at all, or (2) (as with the first prescriber in Hamilton) weren’t exposed until after the prescription was made. Maybe (3) they were exposed, and (like most advertising) it didn’t motivate them to do anything. Maybe (4) they were exposed, and motivated to see their doctors, but they never said anything to their doctors about the advertised drug, because the doctor brought it up first. Or maybe (5) they were exposed, and motivated, and did mention it, but the doctor (like the second prescriber in Hamilton) knew about the risk that the DTC advertising omitted.
In none of these five situations – and we doubt on any other set of facts where a DTC exception would produce a different result than current law – do the plaintiffs deserve to win. The DTC advertising itself was simply non-causal. It did not affect the decision of the physician to put, or to keep, the plaintiff on the drug/device. Thus, in the only situations where a DTC exception makes a difference, the plaintiffs that it would benefit don’t deserve to win.
This is where we fundamentally part ways with Watts. Wattsstates, “when the manufacturer of a product furnishes false or misleading information to the consumer, that manufacturer should not be shielded from liability simply because it provided adequate warnings to a third party.” 324 P.3d at 855. But causation is not “shielding.” Information, no matter how false, causes no harm unless somebody acts on it to his/her detriment. Whether it’s called “causation” in product liability, “reliance“ in an action for fraud, or “ascertainable loss” in a private consumer fraud action, the principle is the same. Harm must have resulted from something that the false information prompted someone to do. Causation is a prerequisite before one even gets to UCATA apportionment. Superseding cause in Arizona still exists. UCATA doesn’t purport to abolish superseding cause. Jimenez, supra. Watts totally overlooked this foundational step.
The plaintiff in Watts “alleges that she saw and relied on information,” 324 P.3d at 355, but a prescription drug isn’t something she could go down to the local drugstore and pluck off the shelf. She also “alleges that she relied on these manufacturer-provided materials in choosing to take” the drug after it was prescribed. Id. All well and good, but in neither case could she have obtained the drug without the physician prescribing it in the first place. Where Watts got it wrong was the phrase “[n]otwithstanding the actions of any prescribing physician.” Id. Since the prescribing physician is the sole legal source for obtaining a prescription medical product, there can’t be any “notwithstanding” caveat – any more than one can breathe “notwithstanding” being underwater.
So are we just talking through our hats, here? Making this stuff up? We’ve already mentioned that no court has ever mentioned, let alone addressed, the learned intermediary rule and UCATA in the same opinion. There has, however, been plenty written about the learned intermediary rule and superseding cause. Almost every court agrees with us that physician conduct can function as superseding cause in a learned intermediary rule context, if on the facts, causation is “vitiated”:
Where the manufacturer fails to provide the physician with an adequate warning, courts have held that the manufacturer may still be shielded from liability if it can show that the prescribing physician would not have heeded an adequate warning. In so holding, courts have reasoned that the physician’s conduct acts as an intervening-superseding cause of the plaintiff's injury which vitiates any liability on the part of the manufacturer.
Garside v. Osco Drug, Inc., 976 F.2d 77, 80 (1st Cir. 1992) (applying Massachusetts law). Garside cited Guevara v. Dorsey Laboratories, 845 F.2d 364 (1st Cir. 1988) (applying Puerto Rico law), and Plummer v. Lederle Laboratories, 819 F.2d 349 (2d Cir. 1987) (applying California and New York law). Gueverarecognized that “the extent of the treating doctor’s knowledge” of a relevant drug risk was “[e]vidence of [a] nature” that “ would go to intervening superseding cause arguments, or similar problems of causation (i.e., if the doctor knew of the danger already, the failure to warn could not have been the cause of the injury).” Id. at 367. Plummer held that the “plaintiff failed to prove that a proper warning would have altered the doctor’s conduct” because “no harm could have been caused by failure to warn of a risk already known.” 819 F.2d at 359 (citation and quotation marks omitted). Similarly, in Stanback v. Parke, Davis & Co., 657 F.2d 642 (4th Cir. 1981) (applying Virginia law), the court agreed that, “[w]hatever may be said about [the prescriber’s] policies and decisions from the standpoint of the patient, it is clear that they precluded [defendant’s] failure to warn from having any effect whatsoever on [plaintiff’s] injury.” Id. at 645.
Texas courts have also noted the learned intermediary rule is “related to the tort concept of superseding cause.” Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609 (Tex. App. 1993). Rolen rejected, almost verbatim, the proposition advanced inWatts – “that a drug manufacturer should effectively become the insurer for every patient to whom the drug is prescribed,regardless of the actions of the prescribing physician.” Id.(emphasis added). Under such a rule, Rolen recognized, “[t]he physician’s professional knowledge and judgment in prescribing a medication would cease to be relevant,” which was “plainly against clear logic, [and] the public’s best interest.” Id. at 609-10. See also Brumley v. Pfizer, Inc., 149 F. Supp. 2d 305, 314 (S.D. Tex. 2001) (“the physician’s explanation of the warning, or failure to do so, breaks the chain of causation when the patient suffers the effect that the precaution warns against”).
Likewise, Missouri has applied a superseding cause analysis to physician conduct under the learned intermediary rule:
The learned intermediary doctrine provides that the failure of a drug manufacturer to provide the physician with an adequate warning of the risks associated with a prescription product is not the proximate cause of a patient’s injury if the prescribing physician had independent knowledge of the risk that the adequate warnings should have communicated. Thus, the causal link between a patient’s injury and the alleged failure to warn is broken when the prescribing physician had substantially the same knowledge as an adequate warning from the manufacturer that should have been communicated to him.
Doe v. Alpha Therapeutic Corp., 3 S.W.3d 404, 420 (Mo. App. 1999). Michigan has too:
Many unforeseeable intervening forces destroy causation and negate liability. These forces do not have to be tortious forces. [Defendant] argues that the doctor’s conduct, whether tortious or not, prevented [its] possible lack of adequate warning from proximately causing [plaintiff’s injuries]. The evidence supports this theory.
Dunn v. Lederele Laboratories, 328 N.W.2d 576, 582 (Mich. App. 1982). See also Foister v. Purdue Pharma, L.P., 295 F. Supp.2d 693, 706 (E.D. Ky. 2003) (agreeing that “Kentucky would apply the [learned intermediary] doctrine,” given “Kentucky courts’ concern with issues of superceding causes in products liability cases”); Allen v. G.D. Searle & Co., 708 F. Supp. 1142, 1162 (D. Or. 1989) (denying motion to strike superseding cause defense in learned intermediary rule situation because “further discovery regarding . . . treating physicians” might substantiate it).
The converse is also true. “[T]he prescribing doctor's conduct may not insulate the manufacturer from liability where the inadequacy of the warning may have contributed to plaintiff's injury.” Hamilton v. Hardy, 549 P.2d 1099, 1109 (Colo. App. 1976) (the red flag is on a different point). “[A] physician’s carelessness, even if it takes an unanticipated form, should not relieve a drug manufacturer of liability if the manufacturer’s failure to warn adequately may have contributed to that carelessness.” Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 656, 660 (1st Cir. 1981) (applying New Hampshire law). “[A] physician’s conduct” does not “automatically act as an intervening cause relieving the manufacturer of liability,” but rather “[i]f [plaintiffs] can produce sufficient evidence to create a triable issue of the question of causation, they will defeat a motion for summary judgment.” Eck v. Parke, Davis & Co., 256 F.3d 1013, 1023 (10th Cir. 2001) (applying Oklahoma law) (citation and quotation marks omitted). See also Taylor v. Wyeth Laboratories, Inc., 362 N.W.2d 293, 300 (Mich. App. 1984) (“if the prior negligence is still operating” then “whether [the prescriber’s] conduct was a superseding cause of the injury was a jury question”). These cases don’t mean, as Watts seems to infer, that the learned intermediary rule doesn’t exist – Colorado, New Hampshire, Oklahoma, and Michigan all follow it – only that intervening physician conduct isn’t an automatic win for defendants, which not even we have ever claimed it to be.
Finally, since Watts is unique in even considering there to be an inconsistency between joint tortfeasor principles and the treatment of physician conduct by learned intermediary rule, we decided to see if, generally, joint tortfeasor contribution has ever been held inconsistent with superseding cause – forget about the learned intermediary rule context. The Restatement of Torts answers the question, and the answer is no. Restatement (Second) of Torts §875, stating the “General Rule” for “Contributing Tortfeasors,” is subject to general causation rules, including that of superseding cause:
The rule stated in this Section is consistent with the rules stated in §§430-453, which set forth the rules of causation applicable to negligence cases and in which it is implicit that any one of a number of persons whose tortious conduct is a substantial factor in causing harm is liable for the harm in the absence of a superseding cause.
Id. comment c (emphasis added). Following the Restatement’s cross-reference, we came upon Restatement (Second) of Torts §433A (1965), pertaining to “Apportionment of Harm.” Once again the Restatement contemplated the peaceful coexistence of apportionment and superseding cause:
It is not necessary that the misconduct of two or more tortfeasors be simultaneous. . . . Whether there is liability in such a case may depend upon the effect of the intervening agency as a superseding cause.
Id. comment i (emphasis added). ‘”The rules stated in §§430–453 [of the Restatement] as determining the causal relation necessary to liability are as fully applicable to establish the extent of liability as to establish its existence.” Thompson v. Better–Bilt Aluminum Products Co., 832 P.2d 203, 207 n.5 (Ariz. 1992) (citation and quotation marks omitted).
We also found Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind. 1994), where the plaintiff argued “that the doctrine of intervening cause does not apply because . . . the Comparative Fault Act eliminates the use of the common law doctrine.” Id. at 520. That sounds a lot like the rationale in Watts. Although finding a jury question on superseding cause, the courtMcLaughlin rejected the plaintiff’s statutory abolition argument:
Indiana has long recognized the doctrine of intervening cause. . . . An intervening negligent act breaks the chain of causation only if the harm resulting from the intervening act could not have been reasonably foreseen by the original negligent actor. An intervening cause is not a concurrent and contributing cause like the acts of joint tortfeasors, but instead is treated as a superseding cause that results in the original negligence being considered a remote cause and not a proximate cause.
Id. (citations and block quote omitted).
Because nothing in the Arizona version of UCATA impairs the established common-law concept of superseding cause, and because the treatment of prescriber conduct under the learned intermediary rule is governed by superseding cause principles, we find the rational of Watts to be quite dim indeed. Nor isWatts’ statutory rationale at all supported by the fact of DTC advertising, since should such advertising support a factual causation argument, apportionment of liability can readily be accomplished (and has been accomplished) within the learned intermediary framework. Before Watts no court anywhere in the country had identified any conflict between joint tortfeasor contribution (or lack of same) and the learned intermediary rule. For all these reasons, we believe that Watts is a poorly-reasoned outlier decision that deserves to be appealed and reversed.