FOR IMMEDIATE RELEASE:   FEDERAL COURT IN NEW MEXICO REJECTS LEARNED INTERMEDIARY DOCTRINE AS BEING "OUTDATED . . . UNPERSUASIVE" AND INCOMPATIBLE WITH THE POLICY GOALS OF STRICT TORT LIABILITY ©August 25, 2008, www.JusticeSeekers.com             On Friday, August 22, 2008, a second state rejected the learned intermediary doctrine as being "outdated and unpersuasive" [FN1] in the Twenty First Century world of Internet drug promotion and direct-to-consumer advertising of prescription medications.    Rimbert v. Eli Lilly, ___F.Supp.2d ___, 2008 WL ___ (D.N.M. 2008)[Civ. Action No. ____].    In his lengthy, scholarly opinion, Judge James O. Browning emphasized the traditional role, and corresponding constitutional prerogatives, of the states, to provide tort remedies for their citizens. The Court noted that the public policies which undergird New Mexico's adoption of strict tort liability under RESTATEMENT §402A [FN2]  are (a) to allocate the risk of loss to the companies who are most able to absorb it and to take measures to avoid the injuries, and (b) "to promote fairness by ensuring that the plaintiffs injured by an unreasonably dangerous product are compensated for their injuries. The learned intermediary doctrine would leave some plaintiffs uncompensated."  Id. at p. 61/106.                 In light of this jurisprudential history and public policy, the Rimbert court predicted [FN3] that the New Mexico Supreme Court "would not, in 2008, adopt the doctrine of learned-intermediary and would decline to follow the Court of Appeals  cases from the 1970s and 1980s."  Id.   In the following sentence, the court noted that "[t]he primary reason that the Court believes that the Supreme Court of New Mexico would not adopt the learned-intermediary doctrine is that it is fundamentally inconsistent with New Mexico's strict-liability jurisprudence."  Id. (emphasis added).             One of the customary arguments made by proponents of the learned intermediary doctrine is that a legal obligation to warn consumers directly would undermine the doctor-patient relationship.   Judge Browning dismissed that shibboleth handily, writing The informed consumer is likely to ask the physician more questions, and informed responses may increase reliance rather than decrease reliance.   The warnings may make the relationship more dynamic rather than one-sided. . . .  a better informed client is likely to help, not hinder, the doctors' exercise of their professional judgment. . . .  It is difficult to think of how more information would interfere with the relationship; if anything, the relationship will be more informed. Id. at pp. 67-68, 71/106.             Our law firm is pursuing similar arguments in other jurisdictions in which the High Courts of the states have not adopted the learned intermediary doctrine, including Wyoming, Louisiana, and South Dakota.   Footnotes/Endnotes FN 1:   The first court to so hold was the West Virginia Supreme Court in State ex rel. Johnson and Johnson Corp. v. Karl, 647 S.E.2d 899 (W.Va. 2007).    Lilly, like most of the other major pharmaceutical companies, has tried to marginalize that opinion as aberrational.    In Rimbert, Judge Browning predicted that "the Supreme Court of New Mexico would be more persuaded by the analysis in [Karl] rather than what other courts, including many state courts and the New Mexico Court of Appeals, have found."  Id. at p. 65/106. FN 2:   The learned intermediary doctrine is codified in RESTATEMENT (THIRD) OF TORTS, §6(d), with both a rule and an exception (requiring direct to patient warnings in some circumstances).    The Rimbert court rejected this formulation of the doctrine, writing that it "does not believe that New Mexico would create an exception to its strict-liability doctrine and then create exceptions to the exceptions."   Id. at p. 75/106. FN 3:   The Rimbert opinion is an Erie prediction.  Mark Rimbert asked Judge Browning to certify the question of whether the New Mexico Supreme Court would, or would not, adopt the doctrine, but Lilly repeatedly objected, noting that, under the unique wording of the New Mexico certification statute, even old New Mexico Court of Appeals' opinions on point precluded certification.   The Court agreed with Lilly in this respect, noting that "the Supreme Court of New Mexico did not draft its certification rule precisely with the federal court's Erie duty in mind, and this Court's task in this case and the rule's intent are somewhat different."   Id. at p. 59/106.