In a case of first impression in West Virginia, the state Supreme Court of Appeals recently specifically declined to adopt the learned intermediary doctrine. Johnson & Johnson Corp. v. Karl, No. 33211 (June 27, 2007). Pursuant to the learned intermediary doctrine, a drug manufacturer is not required to provide a product warning to each patient that receives the drug when the manufacturer properly warns the prescribing physician of the drug’s dangers. West Virginia now joins twenty-two other states where the highest courts have not adopted the doctrine.

In declining to adopt the doctrine, the Court specifically opined that it is outdated. The Court reasoned that the healthcare industry has changed and that pharmaceutical manufacturers “are pushing their products onto the public like never before . . . [p]harmaceutical manufacturers spend millions to make millions more.” In light of the fact that the manufacturers are so skilled at and are marketing their products directly to the consumers, the court opined that manufacturers should also have the burden of warning those same consumers: "under West Virginia products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers."

A copy of the Court’s decision can be found here.