Groups square off over Court's drug warning ruling

By Chris Dickerson | Jul 13, 2007


CHARLESTON -- The West Virginia Association for Justice recently commended the state Supreme Court for a decision saying pharmaceutical companies must warn consumers about the risks of their products.

But a group representing the country's leading pharmaceutical research and biotechnology companies says the ruling is a concern and carries the potential for even more litigation.

Last month, the state Supreme Court voted 3-2 to require drug companies to warn consumers. Chief Justice Robin Davis wrote the majority opinion, and Justices Spike Maynard and Larry Starcher agreed.

Johnson & Johnson had petitioned the court to adopt a "learned intermediary" exception, arguing that it is the treating physician who has the obligation to warn the patient about the risks of certain drugs.

"Yes, West Virginia doctors have a responsibility to inform their patients of the risks associated with a particular drug, but that responsibility should not preclude drug companies from that responsibility as well -- particularly when their prescription drugs are aggressively marketed to consumers on television, in magazines and on the Internet," said Teresa Toriseva, president of West Virginia Association for Justice. "Justice Davis, Justice Maynard and Justice Starcher should be commended for their decision to put West Virginia patients and West Virginia doctors first."

Toriseva, a partner in the Wheeling firm of Wexler, Toriseva, Wallace, is the new president of WVAJ, which recently changed its name from the West Virginia Trial Lawyers Association.

"Our Supreme Court has sent a clear message to the pharmaceutical industry that in West Virginia we will not allow billion-dollar drug companies to hide behind doctors and blame doctors when patients are not warned about the risks associated with their prescriptions," Toriseva said in a press release. "I believe that this is a progressive and influential decision that will serve as the standard for other states who are confronted with issues relating to consumer safety in an age of billion dollar direct-to-consumer marketing of prescription drugs."

A senior assistant general counsel for the Pharmaceutical Research and Manufacturers of America, however, said her group is bothered by the ruling.

"It concerns us that West Virginia, contrary to 47 other jurisdictions, doesn't recognize the learned intermediary rule," PhRMA's Marjorie Powell said. "It's not possible for patients to self-diagnose or determine which of multiple drugs would be best for them or to understand the warnings that would have to be written.

It's still true in West Virginia -- as in every other jurisdiction -- that you can't get a prescription drug without a physician. I believe physicians in West Virginia are as careful as they are in other jurisdictions."

Powell said the bottom line is that the Supreme Court ruling could mean more lawsuits.

"It means the potential for more litigation," she said. "Companies face more risks in West Virginia. From our perspective, it is not possible to provide an adequate warning of all of the risks."

This case was handled by Wheeling attorneys Bob Fitzsimmons and Greg Gellner, a member of the WVAJ Board of Governors. The case involved the death of Gellner's mother after her use of the prescription drug Propulsid, a drug which later was recalled by the manufacturer.

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