Dismissing Pharmacy Defendants

While it may not be immediately obvious, the dismissal of pharmacy defendants from drug cases is almost always a good thing. 

The dismissals are often based on the learned intermediary doctrine, which says that a drug manufacturer’s obligation to warn about risks of its prescription medications runs to the doctors, not patients.  The doctrine recognizes the importance of the doctor-patient relationship under which such medications are prescribed.  Pharmacies are not part of that relationship.  So the law avoids putting on them a duty to warn customers about general medication risks.  It could erode the doctor-patient relationship.  Additionally, plaintiff’s lawyers often name pharmacists as defendants to defeat diversity jurisdiction.  So their dismissal, or imminent dismissal, is also a good thing.  It can be the basis for removal. 

We  saw yet another example of this in the Nevada courts, in Baymiller v. Ranbaxy Pharma. Inc., 2012 U.S. Dist. LEXIS 94339 (D. Nev. July 9, 2012).  The plaintiffs sued a whole host of pharmaceutical companies  and two pharmacies.  Id. at *1-3.  One of  the pharmaceutical defendants removed.  Id. at *1.  Once in federal court, the plaintiffs voluntarily dismissed all but one manufacturer and the two pharmacies.  Id. at *9-10.  Those pharmacies moved to dismiss. 

The court granted the motion on the basis of the learned intermediary doctrine:

In Klasch v. Walgreen Co., 264 P.3d 1155 (Nev. 2011), the Nevada Supreme Court addressed the duty of care that a pharmacist owes his or her customers.  Id. at 1156.  In doing so, the Nevada Supreme Court explicitly adopted the learned-intermediary doctrine in the context of pharmacist/customer tort litigation and held that pharmacists have no duty to warn of a prescribed medication’s generalized risks inherent in the prescriptions they fill.  Id. at 1157-59.  This doctrine “prevents pharmacists from constantly second-guessing a prescribing doctor’s judgment simply in order to avoid his or her own liability to the customer.”  Id. at 1159.  However, when a pharmacist has knowledge of a customer-specific risk, the pharmacist has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of the customer-specific risk.  Id. at 1158, 1160.

In this case, the Court grants [the pharmacy’s] motion to dismiss all claims stated against it without leave to amend.  There is nothing in the complaint that alleges that [the pharmacy] had any knowledge of customer-specific risks related to [plaintiff]. As such, [the pharmacist] had no duty to warn [plaintiff] of the generalized risks inherent in her [medications].

Id. at *14-15. 

That’s a pretty good description of it. 

Now, it’s not immediately clear from the opinion that the pharmacies were named as defendants because their residences would defeat diversity jurisdiction.  But we wouldn’t be surprised if they were.