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Federal Court Predicts Wisconsin Would Apply Learned Intermediary Doctrine in Medical Device Cases

Under the learned intermediary doctrine, as long as manufacturers and suppliers of prescription medical products provide adequate warnings to the prescribing physician, they do not have a duty to warn the patient receiving the product. Thirty six states (including Arkansas) and the District of Columbia follow the doctrine.

Wisconsin remains in the minority, but in connection with the second bellwether trial in the In re: Zimmer Nexgen Knee Implant Products Liability Litigation MDL, the presiding federal court predicted that Wisconsin would adopt the doctrine in device cases, holding:

In the context of TKR [total knee replacement] surgery, a patient must rely on the experience and judgment of his or her surgeon, who selects the appropriate implant and educates the patient about the particular risks – based on the patient’s particular circumstances and physiology – that accompany the selected implant or TKR surgery in general. Given that context, and given the widespread acceptance of the doctrine throughout the country, the court believes it is likely that the Wisconsin Supreme Court would apply the learned intermediary doctrine in this case.

In re: Zimmer (Joas), 2016 WL 6135685, *20 (N.D. Ill., Oct. 21, 2016).

The In re: Zimmer decision is limited to medical device cases, and the court noted numerous decisions in prescription drug cases declining to apply the doctrine under Wisconsin law. However, “those courts offer no reason to believe that the Wisconsin Supreme Court would not adopt this majority rule if presented with the issue.” This observation is significant, because it implies a broader prediction: that Wisconsin will join the majority and follow the learned intermediary doctrine in all cases involving prescription medical products.

The In re: Zimmer decision, which also contains extensive discussion on the expert testimony in the case, can be found here.

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