Litigation Update: Proximate Cause Under The WPLA (Washington Product Liability Act)
Posted May 29, 2019
By Washington State Litigation Lawyer Todd J. Cook
The Washington Court of Appeals recently issued a published decision in Sherman v. Pfizer et al., No. 50914-8-II, 2019 WL 1923583, — P.3d — (Wn. App. April 30, 2019), providing valuable guidance for attorneys litigating duty to warn cases under the Washington Product Liability Act (“WPLA”), RCW 7.72. In Sherman, the plaintiff allegedly developed a serious degenerative nerve disease from prolonged use of a generic prescription medication manufactured by the defendants. She argued that her injury was caused by the defendants’ failure to provide adequate warnings – either through updated package inserts or other means. The Sherman opinion analyzed proof of proximate cause in the context of reviewing the denial of the defendant drug manufacturers’ motions for summary judgment.
The WPLA states:
A product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was . . . not reasonably safe because adequate warnings or instructions were not provided.
RCW 7.72.030(1) (emphasis added). Under the “learned intermediary” doctrine, where medical products, including medications, are only available to patients upon the prescription of the treating physician, the manufacturer satisfies its duty to warn by providing adequate warnings to the physician. “The manufacturer’s duty to provide warnings to patients transfers to the doctor, who is in a better position to communicate them to the patient.” Sherman, slip op. at 8 (citing Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 757, 389 P.3d 517 (2017)). Thus, Sherman argued that the drug manufacturers failed to give adequate warnings to her prescribing doctor.
Adequacy of Package Inserts
The Court never reached the question of whether the defendant manufacturers’ package inserts provided adequate warnings under the WPLA. Instead, the Court focused on the doctor’s review and use (or lack thereof) of the manufacturers’ warnings. The undisputed evidence in the summary judgment record established that the prescribing physician (1) did not read the package inserts, (2) had never read the package inserts for the name brand version of the drug in question, and (3) any changes in package insert warnings did not impact the doctor’s decision to prescribe the medication. Sherman, slip op. at 11. There was no record evidence to create a genuine issue of fact regarding whether the physician read the warnings. Simply stated, the evidence established that the content of the package insert warnings was irrelevant to the doctor’s decision to prescribe the medication.
On this factual record, the Superior Court, relying on the Washington Supreme Court’s 1968 decision in Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829, held that Sherman as a matter of law could not establish that the drug manufacturers’ alleged failure to give adequate warnings “proximately caused her condition.” Sherman, slip op. at 12. Quoting the Tenth Circuit Court of Appeals, the Court noted that this result is in line with the majority of courts outside of Washington: “The majority of courts that have examined the issue have held that when a physician fails to read or rely on a drug manufacturer’s warnings, such failure constitutes the ‘intervening, independent and sole proximate cause’ of the plaintiff’s injuries, even where the drug manufacturer’s warnings were inadequate.” Sherman, slip op. at 11 (quoting Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 856 (10th Cir. 2003) (emphasis added).
Other Forms of Product Warnings
Finally, the Superior Court addressed Sherman’s argument that the drug manufacturers had a duty to warn beyond providing adequate package inserts. The Court rejected this argument because the WPLA “expressly states that adequate warnings must be ‘provided with the product.’” Sherman, slip op. at 14. As such, the Court concluded that “a prescription drug manufacturer’s duty under RCW 7.72.030(1)(b) is to provide adequate warnings with the product and there is no duty under the WPLA to communicate such warning to doctors in ways other than through package inserts.” Sherman, slip op. at 16.
The Sherman decision provides valuable guidance for attorneys representing parties in duty to warn cases under the WPLA. Plaintiff’s counsel seeking to establish proximate cause on behalf of their injured clients and defense counsel seeking to break the causal chain (i.e., manufacturer’s counsel) or keep it intact (i.e., physicians’ counsel) should keep this decision in mind while preparing and taking physician depositions and creating a record for summary judgment or trial in WPLA cases under RCW 7.72.030(1). In this case, the drug manufacturers ultimately prevailed on summary judgment because the doctor’s testimony defeated any argument that the adequacy of the manufacturers’ warnings was the proximate cause of the plaintiff’s injury.
The Superior Court’s Sherman v. Pfizer slip opinion can be found here: https://www.courts.wa.gov/opinions/pdf/D2%2050914-8-II%20Published%20Opinion.pdf
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