State ex rel. Johnson & Johnson v. Karl, 33211.

• Court: Supreme Court of West Virginia
• Writing for the Court: Davis
• Citation: 647 S.E.2d 899
• Decision Date: 27 June 2007
• Docket Number: No. 33211.,33211.
• Parties: STATE EX REL. JOHNSON & JOHNSON CORPORATION, a Foreign Corporation, and Janssen Pharmaceutica, Inc., a Foreign Corporation and a Wholly-Owned Subsidiary of Johnson & Johnson, Inc., Petitioners, v. The Honorable Mark A. KARL, Judge of the Circuit Court of Marshall County, Daniel W. Wilson, M.D., and Estate of Nancy J. Gellner, by Gregory A. Gellner, Executor, Respondents.

647 S.E.2d 899 STATE EX REL. JOHNSON & JOHNSON CORPORATION, a Foreign Corporation, and Janssen Pharmaceutica, Inc., a Foreign Corporation and a Wholly-Owned Subsidiary of Johnson & Johnson, Inc., Petitioners,
v.
The Honorable Mark A. KARL, Judge of the Circuit Court of Marshall County, Daniel W. Wilson, M.D., and Estate of Nancy J. Gellner, by Gregory A. Gellner, Executor, Respondents. No. 33211. Supreme Court of Appeals of West Virginia. Submitted January 23, 2007. Decided June 27, 2007. Concurring Opinion of Justice Starcher June 29, 2007.

[647 S.E.2d 900]

Syllabus by the Court

1. "`A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1.' Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)." Syllabus point 1, State ex rel. Caton v. Sanders, 215 W.Va. 755, 601 S.E.2d 75 (2004).

2. "`In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.' Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996)." Syllabus point 2, State ex rel. Caton v. Sanders, 215 W.Va. 755, 601 S.E.2d 75 (2004).

3. Under West Virginia products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers. We decline to adopt the learned intermediary exception to this general rule.

Stephen B. Farmer, G. Kenneth Robertson, Farmer, Cline & Campbell, PLLC, Charleston, for the Petitioners.

Robert P. Fitzsimmons, Fitzsimmons Law Offices, Gregory A. Gellner, Gellner Law Offices, Wheeling, for the Respondent, Estate of Nancy J. Gellner.

D.C. Offutt, Jr., Stephen S. Burchett, Jody M. Offutt, Randall L. Saunders, Offutt, Fisher & Nord, Huntington, Patrick S. Casey, Burns, White & Hickton, Wheeling, for the Respondent, Daniel W. Wilson, M.D.

DAVIS, Chief Justice:

In this action invoking the original jurisdiction of this Court in prohibition, a drug manufacturer asks this Court to adopt the learned intermediary doctrine as an exception to the general duty of manufacturers to warn consumers of the dangerous propensities

647 S.E.2d 901

of their products.¹ After thorough consideration of the learned intermediary doctrine in light of the current state of the prescription drug industry and physician/patient relationships, we decline to adopt this doctrine. Accordingly, the requested writ of prohibition is denied.

I. FACTUAL AND PROCEDURAL HISTORY

This case is before this Court on a petition for writ of prohibition. Accordingly, the facts have not been conclusively determined below. Nevertheless, it appears to be undisputed that on May 19, 1999, Mrs. Nancy J. Gellner was prescribed the drug Propulsid®² by her primary care physician, Daniel J. Wilson, M.D., a respondent to this proceeding (hereinafter referred to as "Dr. Wilson"). Petitioner Janssen Pharmaceutica, Inc., is a wholly-owned subsidiary of petitioner Johnson & Johnson, Corporation (hereinafter collectively referred to as "Janssen"). Propulsid® was manufactured and distributed by Janssen. In addition to prescribing Propulsid®, Dr. Wilson also provided Mrs. Gellner with samples of the prescription drug, which samples had been provided to Dr. Wilson by representatives of Janssen. Mrs. Gellner died suddenly on the third day after she began taking Propulsid®.³

On May 17, 2001, Mrs. Gellner's estate (hereinafter referred to as "the Estate"), a respondent herein, filed a products liability/medical malpractice action against Janssen and Dr. Wilson in the Circuit Court of Marshall County, West Virginia.⁴ On August 26, 2004, Janssen filed a motion for summary judgment asserting that, under the learned intermediary doctrine, it had fulfilled its duty to warn by providing warnings regarding Propulsid® to Dr. Wilson. Apparently, the circuit court orally denied the motion for summary judgment on March 28, 2005, on the ground that disputed questions of fact remained pending in the case.⁵ Thereafter, Janssen, again relying on the learned intermediary doctrine, filed a motion in limine to exclude evidence or argument by the Estate suggesting that Janssen had a duty to provide any warnings regarding Propulsid® to Mrs. Gellner personally. Observing that this Court has not recognized the doctrine of the learned intermediary, the circuit court denied Janssen's motion by order entered on June 13, 2006. Janssen filed a petition for writ of prohibition in this Court seeking to prohibit enforcement of the circuit court's June 13, 2006, order. On October 26, 2006, this Court granted a rule to show cause. We now deny the writ.

II. STANDARD OF REVIEW

This case is before this Court upon Janssen's petition for a writ of prohibition. When asked to prevent a lower court from enforcing an order it has entered, this Court reviews the order to determine whether the lower court has committed error by so ruling. For an award of the extraordinary remedy of prohibition to be proper in a particular case, however, the allegedly improper actions of the lower court must constitute more than a simple abuse of discretion. "`A writ of prohibition

647 S.E.2d 902

will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1.' Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)." Syl. pt. 1, State ex rel. Caton v. Sanders, 215 W.Va. 755, 601 S.E.2d 75 (2004).

The parties to this proceeding do not claim that the lower court lacked jurisdiction when it entered its order of June 13, 2006. Rather, Janssen contends that the lower court exceeded its legitimate powers by refusing to apply the learned intermediary doctrine to rule in its favor. When it is claimed that the lower court has acted beyond its legitimate powers, we consider many factors to ascertain whether granting extraordinary relief through prohibition is warranted.

"In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

Syl. pt. 2, State ex rel. Caton v. Sanders, 215 W.Va. 755, 601 S.E.2d 75. See also Syl. pt. 3, id., ("`In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.' Syllabus point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979)."). We will now proceed to apply this standard to review the lower court's ruling.

III. DISCUSSION

The issue raised in this original jurisdiction action is one of first impression. In order to decide whether prohibition should lie in this case to prohibit the circuit court from refusing to apply the learned intermediary doctrine, we must examine that doctrine and determine whether it should be adopted into the common law of West Virginia.

"The learned intermediary doctrine provides an exception to the general rule imposing a duty on manufacturers to warn consumers about the risks of their products." In re Norplant Contraceptive Prods. Liab. Litig., 215 F.Supp.2d 795, 803 (E.D.Tex.2002) (citing ...