West Virginia Supreme Court Strikes Down Learned Intermediary Rule

October 1, 2007

James Beck, Theodore H. Frank

In 1999, the New Jersey Supreme Court created an unprecedented exception to the learned intermediary rule, holding that it did not apply where the manufacturer had engaged in direct-to-consumer advertising. The decision was especially surprising because New Jersey was one of the few states where the legislature had explicitly written the learned intermediary doctrine into statutory law. Perez v. Wyeth Laboratories, Inc. was not followed in other jurisdictions until 2007, when the West Virginia Supreme Court used the rationalization of direct-to-consumer advertising in State ex rel. Johnson & Johnson Corp. v. Karl (a case where there was none at issue) to hold that it would be the first state to disregard the learned intermediary doctrine....

West Virginia Supreme Court Strikes Down Learned Intermediary Rule