The Drug and Device law blog has a comment on the recent case Legard v. Ortho-McNeil Pharmaceutical, Inc., 2011 U.S. Dist. LEXIS 67997 (N.D. Ohio June 24, 2011) in which the court dismissed a claim based on the learned intermediary doctrine. As you would expect, they use the case to support the continued use of the doctrine. I have an entirely different take on it. In my opinion, the case actually illustrates why we don't need the doctrine.
I will start by confessing that I have not read the case myself. I am, thus, commenting based on the information provided in the D&D blog. So read their full comment here. To make a long story short, the case involves a plaintiff who sued the manufacturer of a birth control patch claiming inadequate warnings about the risks of blood clots. The facts show, however, that the defendant did warn the doctor, that the doctor warned the patient and that the patient admitted to understanding the warnings from the doctor and the package insert. The case was dismissed.
Given those facts, I agree the case should have been dismissed. But, here is the thing, we do not need the learned intermediary doctrine to reach that result. Even if we get rid of the LID entirely, the case should have been dismissed.
This was a case where the plaintiff's own evidence defeated her claim that there were no warnings. She simply did not have a claim. The manufacturer would have won regardless of whether the jurisdiction did away with the LID.
Thus, the case raises the question... if the cases that should be dismissed can be dismissed without using the LID, and if there are cases that should not be dismissed that are getting dismissed because of the LID, why do we need the LID to begin with?