W. Va. Federal Judge Strikes Forest Labs' Learned Intermediary Defense in Lexapro Suicide Case

From: HarrisMartin's Drugs & Medical Devices Publication

Date: July 17, 2014

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W. Va. Federal Judge Strikes Forest Labs' Learned Intermediary

Defense in Lexapro Suicide Case

WHEELING, W. Va. - A West Virginia federal judge has granted a plaintiff's motion to strike a drug maker's learned intermediary defense in a Lexapro suicide case, noting the state's high court has expressly declined to adopt the learned intermediary doctrine.

On July 15, Judge Irene M. Keeley of the U.S. District Court for the Northern District of West Virginia rejected the drug maker's argument that the state high court's rejection of the doctrine is not limited to cases that present evidence of direct-to-consumer advertising.

In 2006, Tammy Muzichuck sued Forest Laboratories Inc. in the Marion County (W. Va.) Circuit Court, alleging that her late husband Bruce's ingestion of Lexapro caused him to commit suicide by gunshot in 2004.  Prior to shooting himself, Bruce recently had been prescribed an increased dosage of Lexapro by his physician.

The complaint listed claims of of negligent failure to warn, strict liability, fraud, wrongful death, breach of implied warranty and punitive damages.

After removing the case, Forest asserted several affirmative defenses, including the learned intermediary doctrine.

Muzichuck moved to strike the learned intermediary defense from Forest's answer, arguing that pursuant to West Virginia ex rel. Johnson & Johnson Corp. v. Karl (647 S.E.2d 899 [W. Va. 2007]), the learned intermediary doctrine "does not exist under West Virginia substantive law."

Forest countered that the Karl ruling is limited to cases that present evidence of direct-to-consumer advertising.

In Karl, a woman had been prescribed Propulsid by her physician for treatment of digestive issues. After three days of use, she suddenly died. Her estate filed a products liability and medical malpractice action against the drug's manufacturer and the prescribing physician. The drug maker moved for summary judgment, asserting that it had satisfied its duty to warn the doctor of the drug's risks, therefore the learned intermediary doctrine defeats the claims. After the trial court denied its motion, the drug maker moved to exclude any evidence of its failure to warn the decedent. Again, the Circuit Court denied the motion. The drug maker then filed a writ of prohibition asking the West Virginia Supreme Court of Appeals to prohibit enforcement of the trial court's order denying its motion in limine, and to adopt the learned intermediary doctrine.

In denying the manufacturer's writ, the Karl court reasoned that "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." The Karl court added that "we believe that if drug manufacturers are able to adequately provide warnings to consumers under the numerous exceptions to the learned intermediary doctrine, then they should experience no substantial impediment to providing adequate warnings to consumers in general."

"West Virginia physicians naturally have duties and responsibilities regarding their role in providing prescription medicines to consumers," the Karl court stated. "It would be unreasonable not to require the manufacturers to accept similar responsibilities. Based upon the foregoing, we now hold that, 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. We decline to adopt the learned intermediary exception to this general rule."

Judge Keeley agreed with Forest that in declining to adopt the learned intermediary doctrine, the Karl court relied on the proliferation of direct-to-consumer advertising in declining to adopt the learned intermediary doctrine. However, the judge disagreed with Forest that "Karl did not kill the learned intermediary doctrine in West Virginia because of the specific direct-to-consumer marketing context."

"The Karl court did not distinguish between cases that present evidence of direct-to-consumer advertising and those that do not. Indeed, as Forest argues, the dissent in Karl highlighted the majority's failure to draw such a distinction," Judge Keeley noted. "Thus, the Court rejects Forest's argument that a plaintiff must proffer evidence of direct-to-consumer advertising by a drug manufacturer in order for Karl to apply. Rather, because the instant case involves the assertion of the learned intermediary doctrine by a defendant-prescription drug manufacturer, the holding of Karl applies squarely to prohibit the defense."

Muzichuck is represented by Nicholas Rockforte and Chistopher L. Coffin of Pendley Baudin & Coffin in New Orleans Timothy Manchin and Adam McCoy of Manchin & Aloi in Fairmont, W. Va.

Counsel for Forest are Robert J. Hannen of Eckert Seamans Cherin & Mellott in Canonsburg, Pa., Cash Mischka and Christopher Mulvaney of Ulmer & Berne in Cleveland, and Allen M. Lopus and Robert Ridge of Clark Hill Thorp Reed in Wheeling, W. Va.

Muzichuck v. Forest Laboratories Inc., No. 1:07-16 (N.D. W. Va.)

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