On February 26, 2016, the Governor of West Virginia signed legislation codifying the “learned intermediary” doctrine into West Virginia law. The new statute reads:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-30. Adequate pharmaceutical warnings; limiting civil liability for manufacturers or sellers who provide warning to a learned intermediary.
(a) A manufacturer or seller of a prescription drug or device may not be held liable in a product liability action for a claim based upon inadequate warning or instruction unless the claimant proves, among other elements, that:
(1) The manufacturer or seller of a prescription drug or medical device acted unreasonably in failing to provide reasonable instructions or warnings regarding foreseeable risks of harm to prescribing or other health care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings; and
(2) Failure to provide reasonable instructions or warnings was a proximate cause of harm.
(b) It is the intention of the Legislature in enacting this section to adopt and allow the development of a learned intermediary doctrine as a defense in cases based upon claims of inadequate warning or instruction for prescription drugs or devices.
This language tracks Restatement (Third) of Torts, Products Liability §§6(d) and 6(d)(1).
West Virginia is the 38th state, in addition to the District of Columbia, to adopt the learned intermediary doctrine. The statute is effective 90 days from passage. Thus, it appears the learned intermediary defense will be available in all cases filed after May 17, 2016.
The new law can be found here.