Not too long ago a case here in the Eastern District of Pennsylvania, Slater v. Hoffmann-LaRoche Inc., ___ F. Supp.2d ___, 2011 WL 1087240 (E.D. Pa. March 25, 2011), held that an inadequate warning claim against a “monograph publisher” survived the rather loose standard imposed upon fraudulent joinder.

A publisher?

That’s right, or at least that appears to be what this particular defendant, Wolters Kluwer Health, Inc., (“KWH”) does according to its website – it publishes textbooks (including Lippincott), reference products, journals, bibliographic and reference databases, drug information software, point-of-care tools, web-based information systems, online continuing education products, and electronic information.

A publisher can be liable in a product liability suit in Pennsylvania?

That's a new one on us.

Let’s see how Slater purports to accomplish that feat. First of all, it’s crystal clear under Pennsylvania law that a pharmacist dispensing drugs is not liable for failure to warn about a prescription drug. Coyle v. Richardson–Merrell, Inc., 584 A.2d 1383, 1386-88 (1991); Makripodis v. Merrell–Dow Pharmaceuticals, Inc., 523 A.2d 374, 376-79 (Pa. Super. 1987); Ramirez v. Richardson–Merrell, Inc., 628 F. Supp. 85, 87-88 (E.D. Pa. 1985) (note: these are all Bendectin cases, and Bexis participated in their defense). The only way a pharmacist can be liable is for independently screwing up, such as filling a prescription with the wrong drug.

So the plaintiff didn’t sue the pharmacist.

However, pharmacists now include fact sheets – “patient education monographs” about the drugs they dispense. As Slater recognizes, this isn't something that tort law mandates. In any event, somebody has to prepare and compile this information. KWH is one of those entities.

KWH is also headquartered in Philadelphia, which (unfortunately for it) makes it a non-diverse potential defendant for plaintiffs looking to keep their cases in the Philadelphia Court of Common Pleas. Since he couldn't sue the pharmacist, this plaintiff (with lots of others presumably to follow) elected to sue the publisher of the monograph that his pharmacist gave him on the same failure-to-warn grounds that he's suing the drug manufacturer.

The defense response to this sort of thing is to argue “fraudulent joinder” – that is, that no legally recognized claim against the particular defendant exists and it is being sued solely to defeat diversity, and therefore removal of the case to federal court. The standard for fraudulent joinder is pretty loose:

"Joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment. But, if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.

Slater, 2011 WL 1087240, at *2 (quoting In re Briscoe, 448 F.3d 201, 217 (3d Cir. 2006)) (emphasis original).

So what did Slater cite for the proposition that a publisher can be sued for the content of what it publishes? Nothing from Pennsylvania, that's for sure – just one case from Massachusetts holding a pharmacist who provided such a list might could be liable under an “assumed duty” rationale if the list was misrepresented as being “complete” when it wasn’t. Slater, 2011 WL 1087240, at *3 (citing Cottam v. CVS Pharmacy, 764 N.E.2d 814, 823 (Mass. 2002)). Because Massachusetts allows such a theory, “a Pennsylvania state court could find WKH assumed a duty to plaintiff based on its voluntary provision of monographs.” 2011 WL 1087240, at *3.

We don't think much of that rationale.

For one thing, Slater seems to be adopting a never-before articulated lowest common denominator test – that if any court anywhere in the country has adopted some cockamamie theory, then the fraudulent joinder “possibility” test allows any federal court anywhere else to speculate that any state that has not explicitly rejected the peculiar theory might adopt it.

How about redhibition? Granted, it's only recognized in Louisiana, but there's no case out there stating flat out that Pennsylvania (or probably most other states) refuse to recognize it. How about the AMELD? That's Alabama specific, but no case in Pennsylvania has ever bothered expressly to say "no."

Not only is the rule in Slater bizarre as a matter of common sense, but it's contrary to the Erie doctrine. The Third Circuit has had plenty to say about expansive predictions of state tort law under the Erie, and it sure hasn’t said anything like that.

Instead, it’s held quite the opposite:

Travelers Indemnity Co. v. Dammann & Co., 594 F.3d 238, 253 (3d Cir. 2010):

"[W]e have exercised restraint in accordance with the well-established principle that where two competing yet sensible interpretations of state law exist, we should opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of [that state] decides differently.

Lexington National Insurance Corp. v. Ranger Insurance Co., 326 F.3d 416, 420 (3d Cir. 2003):

"[A] federal court in a diversity case should be reluctant to expand the common law. . . . [T]here has to be a limit somewhere. Our duty here is to predict how the [state] Supreme Court would view this case and we will discharge that duty by holding that it would reject [plaintiff’s] claims.

We could cite lots more precedent for this proposition – and we have – but that’s not even the worst problem with Slater.

The worst problem is that the plaintiff in Slater didn’t sue a pharmacy, he sued a publisher.

They’re not the same.

Suing a publisher for personal injury based upon the substantive content of something it published raises a whole host of other concerns, and these have been addressed by a Pennsylvania court.

In Smith v. Linn, 563 A.2d 123 (Pa. Super. 1989), the plaintiff died, allegedly because of complications brought on by following the so-called “last chance diet.” The plaintiff’s estate sued the publisher of a book that the plaintiff had bought about the diet, claiming that the book was “false and dangerous.” Id. at 125. The Superior Court rejected each of the plaintiff’s theories. In particular any analogy between a publisher and a drug package insert under Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), was rejected. “Instructions by a manufacturer which accompany medication or use of certain marketed goods cannot be equated with publication.” 363 A.2d at 126. In addition:

  • Negligence theories (most analogous to Slater, which is also based on negligence) were barred by the First Amendment, as none of the exceptions to protected speech – purely private matters, actual malice, shouting “fire” – were apposite. Smith, 563 A.2d at 125-26.
  • Other sections of the Restatement, §§310-11, 557A, were not intended to apply to publishers, nor did any case law apply them this way. 563 A.2d at 126.
  • A book is not a “product” under Restatement §402A for strict liabilty purposes. 563 A.2d at 126-27.

Numerous other courts throughout the country have held, similarly to Smith v. Linn, that the First Amendment precludes publishers (as opposed to, say, product sellers) from being held liable for alleged informational defects in the material they publish.

"[T]here is nothing inherent in the role of the publisher or the surrounding legal doctrines to suggest that such a duty [to investigate what they publish] should be imposed on publishers. Indeed the cases uniformly refuse to impose such a duty. Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs.

Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1036-38 (9th Cir. 1991) (publisher of encyclopedia of mushrooms not liable for erroneous description of mushroom as edible).

Thus, plaintiffs can’t sue the publisher of, say, the Physicians' Desk Reference because the information it contains – obtained from drug manufacturers – might be erroneous:

"The material published by PDR is all approved verbatim by the federal Food and Drug Administration, and published by PDR pursuant to 21 C.F.R. §202.1. In light of that fact, PDR’s own failure to perform independent tests on the products described cannot be deemed “malicious,” does not evince “intent to harm,” and is not “reckless.” Plaintiff does not claim that Medical Economics did test [the drug] and was aware of its addictive qualities but nonetheless failed to warn its readers of that fact.

Libertelli v. Hoffman-La Roche, Inc., 1981 U.S. Dist. Lexis 11049, at *4-5 (S.D.N.Y. Feb. 23, 1981). Yup, that’s right. Believe it or not, somebody actually tried suing the PDR. The First Amendment precluded the suit. Id. at *7 (“the reasons stated above in connection with publishers’ liability for false advertisements, the First Amendment blocks [plaintiff’s] claim against the publisher”).

There are a lot more cases against various sorts of publishers. We’ll exclude purely entertainment media (see our rock 'n roll post for some of that) and stick to cases where somebody alleged detrimental reliance of some sort on published information (thus leaving out defamation cases, too). See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003) (book and pamphlet publisher entitled to anti-SLAPP dismissal of failure to warn claim); Fowler v. Thomas Nelson Publications, 2009 WL 612385, at *2-3 (E.D. Mich. March 6, 2009) (Bible publisher not liable for Bible’s negative portrayal of homosexuality); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp.2d 315, 326-27 (S.D.N.Y. 2006) (diet book case similar to Smith v. Linn); Ginsburg v. Agora, Inc., 915 F. Supp. 733, 739 (D. Md. 1995) (subscription newsletter publisher not liable for advertisements); Barden v. HarperCollins Publishers, Inc., 863 F. Supp. 41, 45 (D. Mass. 1994) (publisher did not vouch for qualifications of author); Jones v. J.B. Lippincott Co., 694 F. Supp. 1216, 1217 (D. Md. 1988) (predecessor to KWH not liable for failure of treatments described in medical book); First Equity Corp. v. Standard & Poor’s Corp., 690 F. Supp. 256, 258-59 (S.D.N.Y. 1988), aff’d on other grounds, 869 F.2d 175 (2d Cir. 1989) (publisher of corporate records); Pittman v. Dow Jones & Co., 662 F. Supp. 921, 923 (E.D. La. 1987) (newspaper publisher not liable for advertisements), aff’d, 834 F.2d 1171 (5th Cir. 1987); Lewin v. McCreight, 655 F. Supp. 282, 284 & n.2 (E.D. Mich. 1987) (publisher not liable for “defective” formula in book); Demuth Development Corp. v. Merck & Co., 432 F. Supp. 990, 993 (E.D.N.Y. 1977) (drug index publisher protected from liability for allegedly incorrect information); Gutter v. Dow Jones, Inc., 490 N.E.2d 898, 901 (Ohio 1986) (investment newspaper); Walters v. Seventeen Magazine, 241 Cal. Rptr. 101, 103 (App. 1987) (no liability for errors in advertisement); Bailey v. Huggins Diagnostic & Rehabilitation Center, Inc., 952 P.2d 768, 773 (Colo. App. 1997) (book’s allegedly false statements about dental amalgam safety); Birmingham v. Fodor’s Travel Publications, Inc., 833 P.2d 70, 75-76 (Hawai’i 1992) (travel guide not required to warn about dangerous swimming conditions); Alm v. Van Nostrand Reinhold Co., 480 N.E.2d 1263, 1267 (Ill. App. 1985) (“how to” book publisher); Reynolds v. Murphy, 188 S.W.3d 252, 266-67 (Tex. App. 2006) (information in subscription newsletter); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 396 (Tex. App. 1998) (newspaper reporting of criminal activity); Lacoff v. Buena Vista Publishing, Inc., 705 N.Y.S.2d 183, 187-88 (N.Y. Sup. N.Y. Co. 2000) (investment “how to” book); Daniel v. Dow Jones & Co., 520 N.Y.S.2d 334, 339-40 (N.Y. Sup. 1987) (computerized news service not liable for allegedly false story); Walter v. Bauer, 439 N.Y.S.2d 821, 822 (N.Y. Sup. 1981) (book of science experiments not liable for injuries caused by explosion), mod. on other grounds, 451 N.Y.S.2d 533 (App. Div. 1982).

There are, of course, a couple of “hit man” cases that go the other way. E.g., Rice v. Palladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997) (applying Maryland law). But those pretty much prove the general rule stated here – since they escaped dismissal solely due to a First Amendment exception, incitement of criminal activity, id. at 247-49, that has no conceivable relevance to a case like Slater.

Beyond the First Amendment, there is also no precedent suggesting that any Pennsylvania court would apply the “assumed duty” rationale in the manner suggested by Slater. For one thing, an “assumed duty” in Pennsylvania requires an “express” undertaking:

"[A] defendant must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative legal duty to perform that undertaking carefully. . . . . [There is] no support for the proposition that Section 324A gives rise to an implicit or derivative duty that stems from another, related duty undertaken by the defendant.

Reeser v. NGK North American, Inc., ___ A.3d ___, 2011 WL 198457, at *3 (Pa. Super. Jan. 24, 2011) (citation and quotation marks omitted) (emphasis original). Forseeability is not enough without an express undertaking. Sheridan v. NGK Metals Corp., 609 F.3d 239, 263 (3d Cir. 2010) (applying Pennsylvania law).

For another thing, Pennsylvania courts have steadfastly refused to impose assumed duties for bare omissions, because the assumed duty theory requires that the defendant have done something that makes a pre-existing risk worse. The “negligent performance or nonperformance must increase the risk of harm.” DeJesus v. Liberty Mutual Insurance Co., 223 A.2d 849, 850 (Pa. 1966); see Smithbower v. Southwest Central Rural Electric Cooperative, Inc., 542 A.2d 140, 144 (Pa. Super. 1988) (alleged negligent inspection did not increase risk of electrocution from high tension lines); Evans v. Liberty Mutual Insurance Co., 398 F.2d 665, 677 (3d Cir. 1968) (defendant’s alleged “nonperformance” did not increase pre-existing risk of harm) (applying Pennsylvania law); Midgette v. Wal-Mart Stores, Inc., 317 F. Supp. 2d 550, 561 (E.D. Pa. 2004) (store owner’s actions did not increase risk of violence to plaintiff); Blewit v. Man Roland, Inc., 168 F. Supp. 2d 466, 470 (E.D. Pa. 2001) (failure to inspect did not increase risk of allegedly dangerous machinery).

Nor, of course could the publisher have been liable on the other prong of Restatement §324A – an undertaking to perform a duty owed by another. The only "assumed" duty would be that of the pharmacist. But, as already established, in Pennsylvania a pharmacist does not owe a duty to warn a customer about a drug under the Coyle line of cases.

Obviously, we think that it’s a hideous idea for any court even to contemplate the imposition of liability on a publisher simply for errors in medical information it printed, but that somebody else gives out to the public. The whole premise of the “assumed duty” doctrine is that what the defendant did isn’t legally required. Thus the end result of the kind of liability postulated in Slater is socially counterproductive and contrary to the public health. If the law decides to impose liability on voluntarily provided drug information – simply because it didn’t contain more information than it did – then people will stop providing the information.

And that would be a shame.