January 06, 2015 Articles

A Surprising Win for the Learned Intermediary Doctrine in West Virginia

By Jennifer A. Foster

Despite West Virginia's longstanding rejection of the learned intermediary doctrine, defendant Boston Scientific Corp. earned a surprise win in one of the more than 60,000 pelvic mesh MDL lawsuits currently pending before Judge Joseph Goodwin in the United States District Court for the Southern District of West Virginia. In Tyree v. Boston Scientific Corp., No. 2:12-cv-08633, 2014 U.S. Dist. LEXIS 151397 (S.D. W. Va. Oct. 23, 2014), the court granted Boston Scientific's motion in limine to preclude four consolidated plaintiffs from arguing that Boston Scientific owed them any direct duty under West Virginia law. In reaching this decision, the court distinguished the West Virginia Supreme Court of Appeals' rejection of the learned intermediary doctrine in State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007), and concluded that, on the facts of this case, Boston Scientific's duty to warn ran to the plaintiffs' doctors under the learned intermediary doctrine, not to the plaintiffs themselves. Tyree, 2014 U.S. Dist. LEXIS 151397, at *21–22. Given the ostensible tension between this recent decision and West Virginia's historic antagonism of the learned intermediary defense, a brief history is in order.

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