WA State Court Backs Learned Intermediary in DTC Case
The Washington State Supreme Court ruled 6/2 that the state does not have any drug direct-to-consumer advertising exception requiring pharmaceutical marketers to specifically warn patients about potential adverse events when drug products are advertised directly to consumers. When a drug marketer advertises its products directly to consumers, “it satisfies its duty to warn a patient when it adequately warns the prescribing physician of the drug’s risks and side effects,” the state supreme court ruled.
The ruling was made in response to a question posed to it by the Western District of Washington federal court related to a product liability suit it is hearing (Dearinger vs. Eli Lilly) over injuries caused by Lilly’s Cialis. Dearinger claims that the company knew or should have known Cialis presented a risk of stroke to its users and failed to adequately warn users of the risk.
The policies underlying the learned intermediary doctrine remain intact even in the direct-to-consumer advertising context, the state high court said. “This case raises the question of who the manufacturer must warn,” the court said. “In the context of prescription drugs, the learned intermediary doctrine provides ‘the manufacturer satisfies its duty to warn the patient of the risks of its product where it properly warns the prescribing physician.’” It found that a drug company’s duty to warn transfers to physicians because they are in a better position to communicate warnings to patients.