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From Products Liability Law Daily, May 31, 2013

California Distributor of Anti-Anxiety Drug Not Fraudulently Joined to Defeat Federal Jurisdiction

By Pamela C. Maloney, J.D.

A California company that distributed a drug used to treat anxiety and depressive disorders was not fraudulently joined to defeat federal diversity jurisdiction in a products liability failure-to-warn action brought against the drug’s manufacturer and distributor, a federal district court in California determined (A.S. v. Pfizer, Inc., May 29, 2013, Thurston, J.).

Background. The action was brought on behalf of a child who developed a life-threatening congenital heart defect allegedly as a result of his mother’s use of a brand-named version of the drug venlafaxine, a member of the class of drugs known as serotoninnorepinephrine reuptake inhibitors (SNRIs), during her pregnancy. The complaint alleged that the Pfizer and Wyeth, the manufacturers of the drug, and McKesson, the distributor, failed to warn the mother and health care providers, or the public and the medical community, of the risks associated with use of the drug. The complaint also alleged that the manufacturers and distributor represented that the drug was safe and effective for its indicated use during pregnancy. One of the manufacturers, Pfizer, sought removal of the action to federal court claiming that the California distributor had been fraudulently joined because, under California law, the complaint did not state a failure-to-warn-claim against the distributor.

Distributors’ duty to warn. Under California law, the learned intermediary doctrine precludes any duty to warn users of prescription drugs unless the manufacturer failed to provide an adequate warning to the intermediary—the prescribing physician. If the warning fails to provide the doctor with known or knowable information which “militates” against use of the drug by certain patients, the learned intermediary does not preclude the imposition of liability, including liability imposed on a distributor. According to the court, California law imposes strict liability on any entity involved in the marketing/distribution process if certain factors are present. Although California courts have never addressed directly the issue of whether a distributor in a prescription drug case could be held strictly liable, the decisions have not precluded the imposition of liability in these circumstances. In addition, rulings by the federal district court and the Ninth Circuit have consistently held that comment k of the Restatement (Second) of Torts, which precludes liability for injuries from prescription drugs based on any theory other than manufacturing defect (which was not alleged in this case) or failure to warn, does not exempt distributors from liability. Because the court could not find, as a matter of law, that the failure-to-warn claim against the distributor must fail, the case was remanded to state court.

The case number is: 1:13-cv-00524 – LJO – JLT.

Attorneys: Karen Barth Menzies (Robinson Calcagnie Robinson Shapiro Davis, Inc.) for A.S.; Marshall Mayes Searcy, III (Quinn Emanuel Urquhart & Sullivan, Llp) for Pfizer, Inc.

Companies: Pfizer, Inc.; Wyeth Pharmaceuticals, Inc.; McKesson Corp.

MainStory: TopStory WarningsNews JurisdictionNews DrugsNews CaliforniaNews

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