A tale of six implants: The Perez v. Wyeth Laboratories norplant case and the applicability of the learned intermediary doctrine to direct-to-consumer drug promotion

摘要

The issue in the Perez case of"whether the learned intermediary doctrine should bc modified with respect to the direct-to-consumer (DTC) advertising of prescription drugs" remains an issue of "general public importance that affects the health and well being of the consuming public." The suit started in May 1995 when plaintiffs filed suit against Wyeth-Ayerst in New Jersey alleging failure to warn about the side effects of Norplant. By 1999, 25 cases involving 46 plaintiffs had been consolidated in Middlesex County, New Jersey. The plaintiffs insisted that when manufacturers such as Wyeth-Ayerst engage in DTC advertising they must warn patients, as well as physicians, of potential side effects (see below). Traditionally, under the learned intermediary rule, a drug manufacturer is not liable for injury to a patient, provided that the company has provided adequate warning to that patient's physician. Citing In re Norplant Products Liability Litigation the plaintiffs asked the court to decide whether the learned intermediary rule applied to Norplant. The Texas court had ruled that the learned intermediary doctrine did apply and granted summary judgment to Wyeth-Ayerst; the plaintiffs did not wish to proceed further if the courts in New Jersey concurred. With Wyeth-Ayerst's consent, the court selected five "bellwether" plaintiffs, including Saray Perez, as test cases to decide whether the learned intermediary doctrine should apply to Norplant directly advertised to consumers.