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\\jciprod01\productn\N\NMX\40-3\NMX301.txt The tragedy giving rise to the 2008 Federal District Court of New Mexico case, Rimbert v. Eli Lilly & Co., first began when, at the age of sixty-eight, GilbertRimbert’s wife of forty-two years, Olivia, informed him that she wanted a divorce.1After Gilbert received this unsettling news, Gilbert developed feelings of despon-dence and depression and consulted his primary care physician, Dr. Hochstadt, forhelp.2 Gilbert first met with Dr. Hochstadt regarding his depression on August 18, 2003, at which time Dr. Hochstadt evaluated the severity of Gilbert’s symptomsand concluded that Gilbert was suffering from moderate depression.3 Based on thisconclusion, Dr. Hochstadt prescribed Gilbert with a twenty milligram daily dose ofFluoxetine, the generic equivalent of Prozac.4 Dr. Hochstadt then cautioned Gil-bert regarding the increased risk of suicidality associated with the use of SSRIs5and requested that Gilbert return for a follow-up visit in three to four weeks.6 When Gilbert returned for his follow-up appointment, he reported that he had not noticed any dramatic improvements in his overall mood.7 Based on this report,Dr. Hochstadt increased Gilbert’s daily dose of Fluoxetine from twenty milligramsto forty milligrams, and again cautioned Gilbert to contact his office if he exper-ienced any thoughts of suicide or worsening depression.8 Dr. Hochstadt then in-structed Gilbert that he wanted to see him back in his office for a follow-upappointment in two months.9 Gilbert never made that appointment.
On the morning of September 25, 2003, Gilbert shot and killed his wife Olivia, the family dog, and himself.10 When the police arrived at the Rimbert’s home, theyfound Gilbert seated at the kitchen table next to a bottle marked “Prozac.”11 Thetoxicological examination indicated that at the time of the shooting Gilbert hadFluoxetine in his system.12 Loren Foy, University of New Mexico School of Law, J.D. Candidate 2011.
1. CIV 06-0874, 2009 U.S. Dist. LEXIS 68851, at *3–4 (D.N.M. July 21, 2009).
2. Rimbert v. Eli Lilly & Co., 577 F. Supp. 2d 1174, 1179 (D.N.M. 2008) (predicting the New Mexico Supreme Court would reject the learned intermediary doctrine, the court granted in part and denied in partEli Lilly’s Motion for Summary Judgment), modified, No. CIV 06-0874, slip op. (D.N.M. Nov. 16, 2009) (deny-ing Rimbert’s Motion for a New Scheduling Order and granting Eli Lilly’s Motion for Summary JudgmentBased on Lack of Admissible Expert Testimony), appeal docketed, No. 09-2307 (10th Cir. Dec. 15, 2009).
3. Id.
4. Id.
5. Id. at 1180. For information about selective serotonin reuptake inhibitors (SSRIs), a class of an- tidepressants used to treat depression, see Alexandre Y. Dombrovski & Richard H. Lindner, Recognizing andDealing with Depression, 32 PENN. LAW. 18, 24 (2010).
6. Eli Lilly & Co., 2009 U.S. Dist. LEXIS 68851, at *5.
7. Id.
8. Id. at *6.
9. Id. 10. Id. at *7.
11. Rimbert v. Eli Lilly & Co., 577 F. Supp. 2d 1174, 1183 (D.N.M. 2008) (noting that the bottle found at the scene was labeled “Prozac” but had no other identifying information linking the bottle to Gilbert).
\\jciprod01\productn\N\NMX\40-3\NMX301.txt Gilbert’s son, Mark Rimbert, filed “a products liability, personal injury, and wrongful death suit against Eli Lilly, the [manufacturer] of Prozac,” alleging that,had Eli Lilly provided Gilbert with an adequate warning, the three deaths couldhave been avoided.13 Eli Lilly responded by asserting the learned intermediary doctrine as an affirm- ative defense.14 The learned intermediary doctrine is an exception to the doctrineof strict products liability and requires drug manufacturers to warn the prescribingphysicians, instead of the ultimate consumers, of the possible dangers posed by theuse of a particular drug.15 Thus, under the learned intermediary doctrine a manu-facturer is able to insulate itself from liability in a failure-to-warn claim, so long asit provides the physician with an adequate warning.16 Although New Mexico has never expressly adopted the learned intermediary doctrine by name, the essence of the doctrine has been consistently applied by theNew Mexico Court of Appeals for over forty years when addressing failure-to-warn claims in the prescription drug context. However, in the 2008 case Rimbert v.
Eli Lilly & Co., the Federal District Court of New Mexico determined that, despitethe apparent adoption of the doctrine by multiple New Mexico Court of Appeals’decisions, the learned intermediary doctrine was “fundamentally inconsistent”with New Mexico’s strict liability jurisprudence.17 It is based on this conclusion thatthe court predicted that, if presented with the issue today, the New Mexico Su-preme Court would reject the doctrine in its entirety.18 This note evaluates the soundness of the Rimbert decision, with particular em- phasis on Judge Browning’s conclusion that the validity of the learned intermedi-ary doctrine did not warrant certification to the New Mexico Supreme Court. InPart I, this note provides a general overview of the learned intermediary doctrineand examines the history of the learned intermediary doctrine within New Mex-ico’s caselaw. Part II evaluates the Rimbert court’s prediction that, if presentedwith the issue today, the New Mexico Supreme Court would reject the learned 13. Eli Lilly & Co., 2009 U.S. Dist. LEXIS 68851, at *8.
14. Rimbert, 577 F. Supp. 2d at 1175.
15. 63A AM. JUR. 2D Products Liability § 1097 (2010). Strict products liability imposes a duty on the manufacturer of a product to directly warn consumers of the risks associated with the use of its product. 72AC.J.S. Products Liability § 7 (2004). The purpose of the doctrine is “to ensure that the costs of injuries resultingfrom defective products are borne by manufacturers and sellers as a cost of doing business, rather than byinjured persons.” Id. 16. See Richards v. Upjohn Co., 95 N.M. 675, 678–69, 625 P.2d 1192, 1195–96 (Ct. App. 1980). The court in Upjohn provided five criteria that courts must examine when determining whether a manufacturer’swarning is adequate: (1) the scope of danger within the warning; (2) whether the warning reasonably com-municates the extent or seriousness of the harm that could result from a misuse of the drug; (3) whether thephysical aspects of the warning itself are such that a reasonably prudent person would be put on notice; (4)whether the warning indicates the consequences that might result from a failure to follow the warning; (5)whether the means used to convey the warning were adequate. Id. at 679; 625 P.2d at 1196; see also 63A AM.
JUR. 2D Products Liability § 1097 (2010).
17. 577 F. Supp. 2d at 1215. The Rimbert court relied on the New Mexico Supreme Court opinion, Brooks v. Beech Aircraft, which held: Although the manufacturer has provided a valuable service by supplying the public with aproduct that it wants or needs, it is more fair that the cost of an unreasonable risk of harmlie with the product and its possibly innocent manufacturer than it is to visit the entire lossupon the often unsuspecting consumer who has relied upon the expertise of the manufac-turer when selecting the injury-producing product.
Id. at 1201 (citing Brooks v. Beech Aircraft, 120 N.M. 372, 375–76, 902 P.2d 54, 57–58 (1995)).
\\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO intermediary doctrine. Part III reviews the Rimbert court’s interpretation of NewMexico’s certification rules. Finally, Part IV examines the procedural and substan-tive implications of the Rimbert decision and suggests that, when addressing fail-ure-to-warn claims in the future, the New Mexico courts should adopt a case-by-case approach in determining whether a manufacturer should benefit from thelearned intermediary doctrine.
The learned intermediary doctrine permits a manufacturer to discharge its duty to warn of the risks associated with the use of its product and to insulate itself fromliability in a failure-to-warn claim by providing a physician with an adequate warn-ing.19 Therefore, under the doctrine, it is the physician, not the manufacturer, thatmust inform his or her patients of the risks associated with the use of any pre-scribed medication.20 In a failure-to-warn claim, this typically results in the patientonly being able to recover damages from the physician, as it is the physician, notthe manufacturer, who bears the burden of warning the patient of the risks associ-ated with the use of a particular medication.21 A. History of the Learned Intermediary Doctrine The learned intermediary doctrine was first conceptualized by the New York Supreme Court in its 1948 case, Marcus v. Specific Pharmaceuticals.22 In that case,the plaintiff alleged that the manufacturer failed to provide consumers with ade-quate information regarding the risks associated with the manufacturer’s medica-tion.23 In addressing the plaintiff’s claim, the New York Supreme Courtdistinguished between prescription and non-prescription medications and held thatthe plaintiff may have had a viable failure-to-warn claim had the medication inquestion been available to the public generally.24 However, because the plaintiff’sclaim involved a medication that was only available with a prescription and be-cause the manufacturer made no representations regarding the product to the con-sumer, the court determined that there was no basis on which to hold themanufacturer liable.25 Shortly thereafter, the distinction between prescription and non-prescription drugs was codified with Congress’s passing of the Durham-Humphrey Amendmentof 1951.26 The purpose of the Amendment was to prevent consumers from engag- 19. Richards, 95 N.M. at 679, 625 P.2d at 1196; see also text accompanying notes 17–19.
20. 63A AM. JUR. 2D Products Liability § 1097 (2010).
21. Id. A manufacturer may be held directly liable to a patient if the manufacturer of the medication failed to provide the prescribing physician with an adequate warning. Id. In order for a plaintiff to recoveragainst the manufacturer in a failure-to-warn claim, the learned intermediary doctrine requires that the patientestablish: (1) that the manufacturer failed to provide the physician with an adequate warning regarding therisks associated with the use of its product; (2) that said risk was not otherwise known to the physician; (3) thatthe manufacturer’s failure-to-warn was both the cause in fact and the proximate cause of the plaintiff’s injury;and (4) that but for the inadequate warning the physician would not have prescribed the product. Id. 22. 77 N.Y.S.2d 508, 509 (N.Y. Sup. Ct. 1948).
23. See id.
24. Id.
25. Id. at 509–10.
26. Durham Humphrey Amendment of 1951, Pub. L. No. 82-215, 65 Stat. 648 (1951) (codified at 21 U.S.C. § 353 (2000)); see also Susan Poser, Unlabeled Drug Samples and the Learned Intermediary: The Case \\jciprod01\productn\N\NMX\40-3\NMX301.txt ing in “self-diagnosis and self-administration of sophisticated and potentially harm-ful drugs.”27 The Amendment classified prescription drugs as being thosemedications that are not safe for use except under the direct supervision of a medi-cal practitioner, and exempted manufacturers of prescription medications fromcomplying with the labeling requirements imposed on manufacturers of non-pre-scription medications.28 By the 1960s, the concept behind the physician acting as a “learned intermedi- ary” between the manufacturer and the patient had been widely adopted; however,the phrase “learned intermediary doctrine,” was not coined until the 1967 opinion,Sterling Drug, Inc. v. Cornish.29 In Sterling, the Eighth Circuit Court of Appealsaddressed a failure-to-warn claim in the prescription drug context by examiningthe extent of a prescription drug manufacturer’s duty to warn.30 In so doing, thecourt held that a manufacturer’s duty to warn of the risks associated with the useof its product extends only to the physician, as the physician functions as a“learned intermediary” between the pharmaceutical company and the patient.31 B. History of the Learned Intermediary Doctrine in New Mexico Although the rationale behind the learned intermediary doctrine emerged in 1948, the New Mexico Court of Appeals did not address the concept of the learnedintermediary doctrine until its 1974 case, Hines v. St. Joseph’s Hospital. There, theplaintiff filed strict liability and negligence claims against St. Joseph’s Hospital,asserting that she had contracted serum hepatitis when the hospital’s blood bank,Blood Services, used blood containing the serum hepatitis virus during the courseof her blood transfusions at St. Joseph’s Hospital.32 Hines further asserted thatBlood Services had failed to warn her that there was a risk of contracting hepatitisassociated with blood transfusions.33 The court determined that the blood used forblood transfusions was to be classified as a prescription drug and noted that, al-though New Mexico had adopted the doctrine of strict liability, prescription drugswere unavoidably unsafe products and fell within an exception to New Mexico’sstrict liability jurisprudence.34 On this basis, the court held that the manufacturersand sellers of prescription drugs are not strictly liable for the resulting harm if the for Drug Company Liability without Preemption, 62 FOOD & DRUG L.J. 653, 656–57 (2007); Charles J. Walshet al., The Learned Intermediary Doctrine: The Correct Prescription for Drug Labeling, 48 RUTGERS L. REV.
821, 827 (1996).
27. Walsh et al., supra note 26, at 827.
28. Poser, supra note 26, at 658; see also Walsh et al., supra note 26, at 827.
29. 370 F.2d 82, 85 (8th Cir. 1965) (“The sole issue [in a pharmaceutical failure-to-warn claim is] whether [the manufacturer] negligently failed to make reasonable efforts to warn [the patient’s] doctors. If[the manufacturer] did so fail, it is liable regardless of anything the doctors may or may not have done. If it didnot so fail, then it is not liable for the [patient’s] injury.”).
30. Id.
31. Id.
32. Hines v. St. Joseph’s Hosp., 86 N.M. 763, 764, 527 P.2d 1075,1076 (Ct. App. 1974).
33. Id. at 765, 527 P.2d at 1077.
34. Id. at 764–65, 527 P.2d at 1076–77 (stating that the unavoidably unsafe product exception to the general strict liability doctrine recognizes that although there are situations in which certain products cannotbe made safe for their intended or ordinary use, such products are not to be deemed defective or unreasonablydangerous due to the potential benefit such products provide).
\\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO drug has been properly prepared and has been distributed with appropriatewarnings.35 In examining the public policy basis for preventing liability from attaching to sellers and manufacturers of prescription drugs, the court determined that becausesellers and manufacturers of prescription drugs have provided the public with auseful product, they should not be held strictly liable for the unintended conse-quences associated with the use of that product.36 In reaching its conclusion, thecourt employed the learned intermediary doctrine in its analysis, and held thatBlood Services’s duty to warn of the dangers of using the blood was to the attend-ing physician, not the patient.37 The New Mexico Court of Appeals, therefore, re-fused to recognize Hines’ failure-to-warn claim and determined that Hines wasunable to recover from either St. Joseph’s Hospital or Blood Services as neitherparty had a duty to warn Hines of the risks associated with use of the blood.38 Shortly thereafter, the New Mexico Court of Appeals shed more light on a man- ufacturer’s liability in the prescription drug context. In Richards v. Upjohn Co., thecourt held that “a drug manufacturer has a duty to warn the medical profession ofthe dangers [associated with the use] of its drugs [that] it knew or should haveknown to exist.”39 If a manufacturer is determined to have breached that duty,then a manufacturer can be held liable to a patient for the injuries stemming fromthat breach.40 Based on this rationale, the court held that a manufacturer cannot beheld directly liable to a patient for harm resulting from a physician’s failure-to-warn so long as the manufacturer provided the doctor with an adequate warning.41 The New Mexico Court of Appeals again employed the reasoning behind the learned intermediary doctrine in the 1983 opinion, Perfetti v. McGhan Medical,where it addressed whether the manufacturer’s duty to warn was owed to theplaintiff or to the physician.42 Again, the court concluded that when “[a] manufac-turer of a product . . . which is obtainable only through the services of a physician”provides an adequate warning to the physician, it “need not warn the patient aswell.”43 This holding reaffirmed the principle in Richards, by reiterating that oncethe manufacturer has provided the physician with an adequate warning, it is thephysician who has the duty to warn the patient of the risks associated with themedication as the physician is better able to consider the dangerous “propensitiesof the product and the susceptibilities of the patient.”44 Thus, by the mid-1980s itwas clear that, although never explicitly addressed by name, the learned intermedi-ary doctrine was fully entrenched within New Mexico’s jurisprudence.
35. Id. at 765, 527 P.2d at 1077.
36. See id.
37. See id. The court then determined that Blood Services had fulfilled its duty to warn by placing a warning directly on the container of blood and by “constantly distribut[ing] an Official Circular of Instructionsfor Use to the hospital staff.” Id. (internal quotation marks omitted).
38. See id.
39. 95 N.M. 675, 678, 625 P.2d 1192, 1195 (Ct. App. 1980) (citations omitted).
40. Id. at 678–79, 625 P.2d at 1195–96.
41. See id. at 679–81, 625 P.2d at 1196–98. For a discussion of when a manufacturer may be held di- rectly liable to a patient, see supra note 21.
42. 99 N.M. 645, 650, 662 P.2d 646, 649 (Ct. App. 1983).
43. Id. (internal quotation marks and citations omitted).
44. Id. at 658, 662 P.2d at 657.
\\jciprod01\productn\N\NMX\40-3\NMX301.txt II. REJECTING THE LEARNED INTERMEDIARY DOCTRINE: RIMBERT V. ELI LILLY & CO.
At the time the Federal District Court of New Mexico rendered its decision in Rimbert v. Eli Lilly & Co., the New Mexico Court of Appeals had not examinedthe status of the learned intermediary doctrine since its 1984 opinion, Serna v.
Roche Laboratories.45 Thus, in Rimbert, when Eli Lilly pled the learned intermedi-ary doctrine as an affirmative defense to Mark Rimbert’s claim, the Federal Dis-trict Court of New Mexico had to examine an issue of New Mexico state law thathad not been addressed in over twenty years.46 In an effort to convince the Rimbert court that the learned intermediary doc- trine was the law in New Mexico, Eli Lilly directed the court’s attention to Serna v.
Roche Laboratories.47 In Serna, the New Mexico Court of Appeals employed thelanguage of the learned intermediary doctrine and held, “[w]here the product is aprescription drug, the manufacturer’s duty to warn is fulfilled if it warns the physi-cian, not the patient.”48 Eli Lilly asserted that, pursuant to Serna, it had no legalduty to directly warn Gilbert of the risks associated with the use of its product.49Eli Lilly, therefore, asserted that pursuant to the learned intermediary doctrine, ithad fulfilled its legal duty to warn by providing warnings in both the Prozac pack-age insert and in the Physician’s Desk Reference.50 Rimbert, on the other hand, contended that Eli Lilly’s reliance on the learned intermediary doctrine was misplaced, as Serna, the principal case on which EliLilly relied, never mentioned the learned intermediary doctrine by name andtherefore failed to demonstrate that New Mexico had explicitly adopted thelearned intermediary doctrine.51 Rimbert further asserted that because the law sur-rounding the learned intermediary doctrine was unclear, the court must eitherrender a prediction as to whether the New Mexico Supreme Court would reject thelearned intermediary doctrine, or certify the question regarding the learned inter-mediary doctrine to the New Mexico Supreme Court.52 Rimbert contended that bycertifying the issue to the New Mexico Supreme Court, New Mexico would finallyhave a “definitive authoritative answer” as to whether the learned intermediarydoctrine was currently the law in New Mexico.53 Eli Lilly opposed the motion forcertification and again asserted that the opinions from the New Mexico Court of 45. 101 N.M. 522, 684 P.2d 1187 (Ct. App. 1984). The New Mexico Court of Appeals again stated its position that when the product in question “is a prescription drug, the manufacturer’s duty to warn is fulfilledif it warns the physician, not the patient.” Id. at 527, 684 P.2d at 1189 (citation omitted).
46. Defendant Eli Lilly & Co.’s Answer to Plaintiff’s Complaint at 14, Rimbert v. Eli Lilly & Co., 577 F. Supp. 2d 1174 (D.N.M. 2008) (No. CIV-06-0874), 2006 WL 6069043; Rimbert, 577 F. Supp. 2d 1174, 1175.
47. Rimbert, 577 F. Supp. 2d at 1186 (referencing Serna, 101 N.M. 522, 684 P.2d 1187; Perfetti v.
McGhan Med., 99 N.M. 645, 662 P.2d 646 (Ct. App. 1983); Hines v. St. Joseph’s Hosp., 86 N.M. 763, 527 P.2d1075 (Ct. App. 1974)).
48. Serna, 101 N.M. at 524, 684 P.2d at 1189.
49. See id.
50. Defendant Eli Lilly & Co.’s Memorandum in Support of its Motion for Summary Judgment on all Claims, Rimbert, 577 F. Supp. 2d 1174 (No. CIV-06-0874), 2008 WL 4487043.
51. Plaintiff’s Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment on all Claims at 20, Rimbert, 577 F. Supp. 2d 1174 (No. CIV-06-0874), 2008 WL 4487044.
52. See Rimbert, 577 F. Supp. 2d at 1186.
53. Id. \\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO Appeals demonstrated New Mexico’s acceptance of the learned intermediarydoctrine.54 The court denied Rimbert’s motion for certification.55 In so doing, the court held that that under the doctrine of Erie R.R. Co. v. Tompkins, when a federalcourt’s jurisdiction rests on diversity of citizenship, the federal court’s task is not tosubstitute its judgment for the state’s supreme court, but is rather to simply ascer-tain and apply the state’s law.56 [When attempting to ascertain and apply the state’s law] the court mustfollow the most recent decision of the state’s highest court. . . . Where nocontrolling state decision exists, the federal court must attempt to predictwhat the state’s highest court would do [if confronted with the issue]. . . .
In doing so, [the court] may seek guidance from decisions rendered bylower courts in the relevant state, . . . appellate decisions in other states,. . . and the general weight and trend of authority in the relevant area oflaw. . . . Ultimately, however, the Court’s task is to predict what the statesupreme court would do.57 The Rimbert court, therefore, determined that its primary task was to “predictwhat the state supreme court would do” if presented with the issue today.58 In an effort to predict what the New Mexico Supreme Court would do if con- fronted with the question regarding New Mexico’s adoption of the learned inter-mediary doctrine, the court examined the history of the learned intermediarydoctrine within the state.59 The court recognized that the New Mexico Court ofAppeals had employed the learned intermediary doctrine in the 1970s and 1980s,but concluded there was “convincing evidence” to suggest that if presented withthe issue today, the New Mexico Supreme Court would decline to follow the NewMexico Court of Appeals precedent and would reject the learned intermediarydoctrine.60 This holding was based, in part, on the Rimbert court’s conclusion that the learned intermediary doctrine was “fundamentally inconsistent with [the] strict-liability jurisprudence” expressed in the New Mexico Supreme Court’s 1995 case,Brooks v. Beech Aircraft.61 In Brooks, the New Mexico Supreme Court explained 54. Defendant Eli Lilly & Co.’s Reply in Support of Its Motion for Summary Judgment on All Claims at 9–10, Rimbert, 577 F. Supp. 2d 1174 (No. CIV-06-0874), 2008 WL 4329182.
55. Rimbert, 577 F. Supp. 2d at 1187 (stating that “under such circumstances, certification of a question concerning New Mexico’s recognition of the learned intermediary doctrine would not be justified or appropri-ate under NMRA [sic] Rule 12-607(A)(1)”); see also id. at 1189 (“Pursuant to N.M.S.A. 1978, § 39-7-4, theSupreme Court of New Mexico may answer questions [certified by the federal district court] if they involvepropositions of New Mexico law that may be determinative of the matter before the certifying court and thereare no controlling precedents from New Mexico appellate courts.”).
56. Rimbert, 577 F. Supp. 2d at 1189 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and Stoner v. N. Y. Life Ins. Co., 311 U.S. 464, 467 (1940)).
57. Id. at 1188 (emphasis in original) (citations omitted).
58. Id. at 1190 (citing Wade v. Emcasco Ins. Co., 483 F.3d 657, 665–66 (10th Cir. 2007)).
59. Id. at 1214.
60. Id. For the author’s summary of the doctrine in New Mexico, see discussion supra Part I.B. For a discussion of the Rimbert court’s rejection of the justifications offered in support of the learned intermediarydoctrine, see infra text accompanying notes 68–84.
61. Rimbert, 577 F. Supp. 2d. at 1215.
\\jciprod01\productn\N\NMX\40-3\NMX301.txt the rationale behind its decision to adopt a strict products liability approach whenit held: [A]lthough [a] manufacturer has provided a valuable service by supplyingthe public with a product that it wants or needs, it is more fair that the costof an unreasonable risk of harm lie with the product . . . manufacturer thanit is to visit the entire loss upon the often unsuspecting consumer who hasrelied upon the expertise of the manufacturer when selecting the injury-producing product.62 The court interpreted Brooks as an indication of the New Mexico Supreme Court’sdesire to ensure that the risk of loss for injuries resulting from defective products isborne by the suppliers, as well as a desire to ensure that “plaintiffs [who are] in-jured by . . . unreasonably dangerous product[s] are compensated for their inju-ries.”63 This interpretation led to the court’s conclusion that the New MexicoSupreme Court would likely apply the Brooks products liability rationale to theprescription drug context, as by allowing “drug manufacturers to shift the burdenof [a] defective product to physicians would undermine the Supreme Court of NewMexico’s conclusion that the burden should be on the manufacturer” upon whoseexpertise the consumer and physician have relied.64 The court, therefore, readBrooks as having foreshadowed the rejection of the learned intermediarydoctrine.65 After surmising that the New Mexico Supreme Court would likely reject the learned intermediary doctrine, the court directed its attention to the West VirginiaSupreme Court of Appeals case, State ex rel. Johnson & Johnson Corp. v. Karl, inwhich the court examined the primary justifications for adopting the learned inter-mediary doctrine and determined them to be “largely outdated andunpersuasive.”66 The Rimbert court then employed the same justifications as applied in Johnson in an attempt to demonstrate that the New Mexico Supreme Court would hold thelearned intermediary doctrine to be “fundamentally inconsistent with [New Mex-ico’s] strict liability jurisprudence.”67 62. Id. at 1216 (quoting Brooks v. Beech Aircraft, 120 N.M. 372, 375–76, 902 P.2d 54, 57–58 (1995)).
63. Id. at 1215.
64. Id. at 1217.
65. Id. at 1225.
66. Id. at 1217 (quoting State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899, 906 (W. Va.
2007)). For further discussion of the Johnson case, see Victor E. Schwartz et al., West Virginia as a JudicialHellhole: Why Businesses Fear Litigating in State Courts, 111 W. VA. L. REV. 757, 781 (2009) (noting that WestVirginia is the only state to have formally rejected the learned intermediary doctrine).
67. Rimbert, 577 F. Supp. 2d at 1215–21; The Johnson court examined the following five justifications for having the duty to warn fall on the physician rather than on the manufacturer: (1) the difficulty manufacturers would encounter in attempting to provide warnings to theultimate users of prescription drugs; (2) patients’ reliance on their treating physicians’ judg-ment in selecting appropriate prescription drugs; (3) the fact that it is the physicians whoexercise their professional judgment in selecting appropriate drugs; (4) the belief that physi-cians are in the best position to provide appropriate warnings to their patients; and (5) theconcern that direct warnings to ultimate users would interfere with doctor/patientrelationships.
Johnson, 647 S.E.2d at 905. The Rimbert court also cited Brooks v. Beech Aircraft, 120 N.M. 372, 902 P.2d 54(1995), to support its position that: “[a]llowing drug manufacturers to shift the burden of defective product tophysicians would undermine the Supreme Court of New Mexico’s conclusion that the burden should be on the \\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO In applying the justifications in Johnson, the Rimbert court first concluded that the potential difficulty in providing warnings to the ultimate consumer was not alegitimate concern that would result in the New Mexico Supreme Court adoptingthe learned intermediary doctrine.68 The court pointed to direct-to-consumer ad-vertising which allows the manufacturer to communicate with the ultimate user asthe basis for this rejection.69 In so doing, the court concluded that direct-to-con-sumer advertising allows for manufacturers to communicate with consumers forthe purpose of increasing “their market share by making their product well knownto both patients and physicians,” and that such communication “generates a corre-sponding duty” that requires manufacturers to directly warn the ultimate users ofpotential defects or dangers associated with their products.70 Moreover, the Rimbert court found that a patient’s reliance on a physician’s judgment in selecting an appropriate prescription medication had no bearing onwhether the patient should be provided with an adequate warning from the drugmanufacturer.71 The Rimbert court reasoned that because a drug does not reactexactly the same way in all individuals, physicians must rely on their patients toinform them as to how they are reacting to the prescribed medication.72 Therefore,the court concluded that having manufacturers provide warnings directly to theconsumer would result in more “informed consumer[s who would be more] likelyto ask the physician more questions . . . [which] may [actually] increase [patients’]reliance [on physicians].”73 Based on this line of reasoning, the Rimbert court con-cluded that the physician-patient relationship would not be adversely affected, butrather may be improved, by requiring that manufacturers provide warnings to boththe consumers and the physicians.74 The court then addressed the assumption that because physicians exercise their professional judgment in the selection of the patients’ medications, they automati-cally assume the role of a “learned intermediary,” thus meriting the application ofthe doctrine. In its evaluation of this justification, the Rimbert court held that a“refusal to adopt the learned intermediary doctrine does not impact adversely theexercise of [a physician’s] professional judgment in any way.”75 The Rimbert courtdetermined that a “better informed [patient would] likely . . . help, not hinder, thedoctors’ exercise of their professional judgment,” because physicians would likelybe forced to better articulate and justify their prescribing choices.76 The court then addressed the assumption that the physician, not the manufac- turer, is the party that is best equipped to warn a patient regarding the possiblerisks associated with a medication.77 Like the Johnson court, the Rimbert court wasskeptical as to whether physicians are in the best position to provide warnings to manufacturer, upon whose ‘expertise’ an ‘often unsuspected consumer’ has relied in ‘selecting the injury-pro-ducing product.’ ” Rimbert, 577 F. Supp. 2d at 1217.
68. Id. at 1218–19.
69. Id. at 1218.
70. Id. at 1219 (citations omitted).
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id.
77. Id. at 1220.
\\jciprod01\productn\N\NMX\40-3\NMX301.txt their patients, as it is the manufacturers that are able to access the “research anddevelopmental history” of a particular medication.78 The court further noted thatbecause managed care has reduced the amount of time that physicians are able tospend with each patient, physicians have less time to inform patients of the risksand benefits of a drug.79 Ultimately, the court concluded that because the “role ofthe private physician [has become] one of passive reliance on the manufacturer,”physicians should not bear the sole responsibility of providing patients with ade-quate warnings.80 In concluding its analysis of the Johnson factors, the Rimbert court rejected the assertion that the doctor-patient relationship would be jeopardized by having amanufacturer directly warn the ultimate consumer. In so doing, the court reasonedthat by providing patients with more information, patients would be better in-formed, and such would result in more meaningful doctor-patient relationships, aspatients would be able to ask more informed questions.81 The Rimbert court thenconcluded that the New Mexico Supreme Court would not adopt the learned inter-mediary doctrine based on the “speculative fear” that such communications woulddamage doctor-patient relationships.82 After examining the possible justifications for adopting the learned intermedi- ary doctrine, the Rimbert court concluded that a patient’s reliance on a physicianas a “learned intermediary” is not the same as it was in the 1970s and 1980s.83 Thus,the Rimbert court predicted that, based on the “erosion of the justifications foradoption” and New Mexico’s strict liability jurisprudence, there was convincingevidence to suggest that the New Mexico Supreme Court would reject the learnedintermediary doctrine.84 III. RIMBERT’S INTERPRETATION OF NEW MEXICO’S As Part I.B of this note demonstrated, a straightforward reading of the New Mexico Court of Appeals’ precedent indicates that at the time that the FederalDistrict Court of New Mexico laid down its decision in Rimbert v. Eli Lilly & Co.,the substance of the learned intermediary doctrine was entrenched within NewMexico’s jurisprudence. This raises the question as to how, in light of the NewMexico Court of Appeals’ precedent, the Rimbert court could have concluded thatthe New Mexico Supreme Court would reject the learned intermediary doctrineand hold the doctrine to be outdated. In attempting to understand the court’s pre-diction in Rimbert, it is important to first understand the basis of the court’s juris-diction and why it departed from the New Mexico Court of Appeals’ precedent.
Because in Rimbert the court’s jurisdiction rested solely on diversity of citizen- ship and involved a state law issue,85 the court was required to abide by the Erie 78. Id.
79. Id.
80. Id. at 1221.
81. Id.
82. Id.
83. See id. at 1218.
84. Id.
85. See generally id. \\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO Doctrine.86 The Erie Doctrine provides that when a federal court’s jurisdictionrests solely on diversity of citizenship, the “federal court’s task is not to reach itsown [conclusion] regarding the substance of the common law, but [is] simply toascertain and apply the state[’s] law” to the issue presented.87 This is not such adifficult feat when the law governing the issue before the court is clearly settled, asthen the court’s task is merely to ascertain and apply the controlling state law tothe issue before it.88 When, however, a state’s highest court has yet to render adecision on the particular issue before a federal court, a federal court is faced withthe much more difficult task of attempting to ascertain the current status of statelaw. In attempting to decipher the status of a particular state law, a federal courtmay look to decisions rendered by a state’s intermediate court for guidance.89 In looking to New Mexico’s intermediate court for guidance, it would appear that the Rimbert court could easily have held the learned intermediary doctrine tobe the law in New Mexico and to have issued a decision in accordance therewith.90Had the Rimbert court reached such a conclusion, the court’s decision would haveallowed for the consistent application of New Mexico law within both branches ofthe judiciary. Moreover, such a decision would have allowed for manufacturersdefending failure-to-warn claims in state and federal court to reasonably expect tobenefit from the learned intermediary doctrine.
Instead, however, since there were no controlling Supreme Court of New Mex- ico cases on the issue, the Rimbert court appears to have concluded the law withinNew Mexico to be unsettled.91 Based on this conclusion, the Erie Doctrine pro-vided the court with the option of engaging in abstention,92 certification,93 or pre- 86. See 28 U.S.C. § 1332 (2006); see also Sheldon R. Shapiro, Annotation, Federal or State Law as Governing Federal Court’s Authority in Diversity Action after Erie R.R. Co. v. Tompkins, to Take JudicialNotice of Law of Sister State or Foreign Country, 7 A.L.R. FED. 921, § 2(a) (1971) (discussing the historicalevolution of the Erie Doctrine).
87. Rimbert, 577 F. Supp. 2d at 1188 (quoting Wade v. Emcasco Ins. Co., 483 F.3d 657, 665–66 (10th Cir. 2007)). “Substantive rules of decision . . . must come from the states.” Jed I. Bergman, Putting Precedentin Its Place: Stare Decisis and Federal Predictions of State Law, 96 COLUM. L. REV. 969, 973 (1996).
88. Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1467 (1997).
89. Rimbert, 577 F. Supp. 2d at 1188.
90. See supra Part I.B (discussing New Mexico Court of Appeals cases addressing the learned interme- 91. Rimbert, 577 F. Supp. 2d at 1214 (“A lack of appellate decisions from New Mexico is not the situation here. The problem is that there is no controlling Supreme Court of New Mexico decision.”). State lawis indeterminate when: (1) a particular legal question allows for more than one reasonable answer; (2) when afederal court is faced with a question not addressed by the state’s highest court; (3) when the state’s lowercourts have not provided a clear answer; or (4) when the decisions governing the issue “no longer represent[ ]the way in which the court would resolve the question today.” Clark, supra note 88, at 1468–69. “When state law fails to provide a determinate answer to a particular legal question,” the role the federal court is supposedto play in the application of the law is less clear and much more difficult. Id. 92. See Meredith v. City of Winter Haven, 320 U.S. 228, 234 (1943) (asserting that abstention is only appropriate in cases involving exceptional circumstances); Bergman, supra note 87, at 998 (defining abstention as a process in which a federal court can abstain from ascertaining or predicting the state law, therefore,leaving the issue to be addressed by the state’s highest court); Deborah J. Challener, Distinguishing Certifica-tion from Abstention in Diversity Cases: Postponement Versus Abdication of the Duty to Exercise Jurisdiction,38 RUTGERS L.J. 847, 862 (1996) (discussing three categories of abstention).
93. See Bergman, supra note 87, at 1000 (stating that certification allows for the state’s highest court to clarify the law concerning the issue before the federal court and “avoids the difficulties” created by predictivedecisions). Certification is similar to abstention in that the federal court defers the issue to the state’s highestcourt; however, with certification the state’s highest court provides the basis upon which the federal court is to \\jciprod01\productn\N\NMX\40-3\NMX301.txt diction94 when resolving the ambiguous state law issue.95 Although the decisionregarding which course of action to take lies within the sole discretion of the court,the ability of a state’s highest court to answer a certified question of state law issubject to a state’s certification rules.96 Based on the procedures governing the certification process within New Mex- ico, the Rimbert court concluded that any attempt at certification would prove tobe fruitless as the language of both the New Mexico’s certification rule and statuteprohibited the New Mexico Supreme Court from answering any issue certified bythe federal court that involved an area of law to which New Mexico’s appellatecourt had spoken.97 Although the Rimbert court noted that it would have preferredto have obtained a definitive answer on the issue from the New Mexico SupremeCourt, it concluded that, in light of the New Mexico Court of Appeals’ decisions,New Mexico’s certification process barred the New Mexico Supreme Court fromimmediately resolving this state law issue.98 The Rimbert court then concluded that,despite the existence of the New Mexico Court of Appeals’ decisions, the ErieDoctrine authorized it to depart from such decisions if it found “convincing evi-dence” that those decisions were not an adequate reflection of the state’s law.99 Based on this interpretation of New Mexico’s certification rules, the Rimbert court held that New Mexico’s statute and rule, coupled with the Erie Doctrine,required that it deny Rimbert’s motion for certification and that it “divine, asmuch as possible, what the Supreme Court of New Mexico would do” if presentedwith the issue.100 In engaging in its “Erie analysis,” the Rimbert court inquired into whether the New Mexico Court of Appeals cases were a “good indication of how the SupremeCourt of New Mexico would rule” if presented with the question today.101 Thecourt concluded that in light of New Mexico’s strict liability jurisprudence and the reach a decision in the case. See id. The decision whether or not to certify the question to the state’s highestcourt lies within the sound discretion of the federal court. See Lehman Bros. v. Shein, 416 U.S. 386, 391 (1974).
94. The predictive approach allows the federal court to render a decision based on its prediction of what the state’s highest court would do if faced with the issue. See Clark, supra note 88, at 1495.
95. See Hanna v. Plumer, 380 U.S. 460, 467–68 (providing the purpose of the Erie Doctrine was to prevent forum-shopping and the “inequitable administration of the laws”). The decision regarding whether toengage in abstention, certification, or prediction is left to the sole discretion of the federal court. See Bergman,supra note 87, at 1000.
96. See Bergman, supra note 87, at 1000 n.193 (stating that a state court may decline to answer a 97. Rimbert v. Eli Lilly & Co., 577 F. Supp. 2d 1174, 1189 (D.N.M. 2008) (considering NMSA 1978, Section 39-7-4 (1997) and Rule 12-607(A)(1)(a) NMRA). Rule 12-607 NMRA addresses the Supreme Courtof New Mexico’s ability to answer certified questions of state law and provides that the New Mexico SupremeCourt may answer a certified question of state law when there is no controlling “appellate opinion of the NewMexico Supreme Court or the New Mexico Court of Appeals.” Rule 12-607(A)(1)(a) NMRA.
98. Rimbert, 577 F. Supp. 2d at 1213–14. This interpretation rests on the assumption that the New Mexico Supreme Court is reluctant to examine issues on which its appellate courts have spoken, but that it iscomfortable with a federal judge reaching his or her own conclusions about the status of a law in New Mexico.
It is hard to imagine that the New Mexico Supreme Court would prefer to defer to a federal judge regardingan ambiguous issue of state law, rather than address the issue itself.
99. Id. at 1222 n. 5 (quoting Stoner v. N.Y. Life Ins. Co., 311 U.S. 464 (1940)).
100. Id. at 1214 (considering NMSA 1978, § 39-7-4 and Rule 12-607(A)(1)(a) NMRA).
101. Id. \\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO outdated justifications offered in favor of the learned intermediary doctrine, theNew Mexico Supreme Court would not adopt the learned intermediary doctrine.102 By departing from the New Mexico Court of Appeals’ precedent, the Rimbert court’s prediction created a state of ambiguity surrounding the status of thelearned intermediary doctrine in New Mexico. After Rimbert, plaintiffs and de-fendants may be subjected to inconsistent judgments depending on the court inwhich a claim is filed. Moreover, the Rimbert court’s departure from the New Mex-ico Court of Appeals’ precedent has increased the chances that a plaintiff will en-gage in forum shopping when deciding where to file a claim. Thus, it is ironic thatthe Federal District Court of New Mexico’s application of the Erie Doctrine hascreated the two problems which the Erie Doctrine was designed to protect against,forum shopping and inconsistent judgments.103 Therefore, in light of the New Mexico Court of Appeals decisions that were directly on point and New Mexico’s rules governing certification, it appears thatthe Rimbert court failed to effectuate the purpose of the Erie Doctrine and erredin its interpretation of Rule 12-607(A)(1)(a) NMRA and NMSA 1978, Section 39-7-4 (1997), when it departed from the New Mexico Court of Appeals precedentand held the New Mexico Supreme Court would reject the learned intermediarydoctrine.
IV. PROCEDURAL AND SUBSTANTIVE IMPLICATIONS OF RIMBERT The implications stemming from the Rimbert court’s decision on the future of the learned intermediary doctrine in New Mexico are yet to be seen as the Rimbertcourt’s decision lacks the power to bind future cases brought in state or federaldistrict court.104 Thus, the current state of ambiguity surrounding the learned inter-mediary doctrine in New Mexico will remain present until the New Mexico Su-preme Court issues a decision regarding whether the learned intermediarydoctrine is the law in New Mexico. Moreover, as discussed next, the ambiguitiessurrounding the potential effect of the Rimbert decision and the future of thelearned intermediary doctrine have created several important procedural and sub-stantive issues.
The ambiguity surrounding the learned intermediary doctrine has presented pa- tients who are looking to recover in failure-to-warn situations with a “crapshoot”when trying to decide in which forum they should file their claims. This crapshootis a result of the fact that a plaintiff who files in state court will be subject to theNew Mexico Court of Appeals’ precedent and, therefore, the learned intermediary 102. Id. at 1215–17 (“[T]he Supreme Court of New Mexico also expressed a specific ‘judgment . . . that although the manufacturer has provided a valuable service by supplying the public with a product that it wantsor needs, it is more fair that the cost of an unreasonable risk of harm lie with the product and its possiblyinnocent manufacturer than it is to visit the entire loss upon the often unsuspecting consumer who has reliedupon the expertise of the manufacturer when selecting the injury-producing product.’ ”) (quoting Brooks v.
Beech Aircraft Corp., 120 N.M. 372, 375–76, 902 P.2d 54, 57–58 (1995)). For a discussion of the learned inter-mediary doctrine, see supra text accompanying notes 68–84.
104. For a discussion on the precedential value of predictive decisions, see Bergman, supra note 87, at \\jciprod01\productn\N\NMX\40-3\NMX301.txt doctrine, while the patient who opts to file in federal court will find himself at themercy of the Federal District Court of New Mexico’s interpretation of the statecertification procedures and potentially its “Erie predictions” regarding the statusof the learned intermediary doctrine in New Mexico. Thus, even though the deci-sion in Rimbert has no binding effect on the Federal District Court of New Mex-ico’s future Erie predictions, patients would be wise to take their chances and filetheir failure-to-warn claims in federal court with the hope that the federal courtwill again find the learned intermediary doctrine to be contrary to New Mexico’sstrict liability jurisprudence.
Moreover, although the prediction rendered in Rimbert does not have a binding effect on the Federal District Court of New Mexico’s future Erie predictions, thepotential exists that a future Federal District Court of New Mexico’s Erie predic-tion could influence state law.105 For example, when a patient files a failure-to-warnclaim against a drug manufacturer in the Federal District Court of New Mexico,the court will again be faced with the task of interpreting New Mexico’s certifica-tion rules. Depending on its interpretation, the federal court will either choose tocertify the issue to the New Mexico Supreme Court or to predict how the NewMexico Supreme Court would rule if presented with the issue today.106 If the fed-eral court concludes that certification would be improper and that the New MexicoSupreme Court would reject the learned intermediary doctrine, the manufacturersubject to that decision could then appeal that decision to the Tenth Circuit Courtof Appeals, asserting that the federal court erred in its prediction and interpreta-tion of New Mexico state law.
As long as the New Mexico Supreme Court does not render a definitive deci- sion on the issue and the Tenth Circuit concludes that the Federal District Court ofNew Mexico’s prediction was correct, the federal court will essentially have en-gaged in New Mexico state lawmaking.107 Therefore, if New Mexico’s certificationrules are continued to be interpreted as they were in Rimbert, then the New Mex-ico Supreme Court will continue to be deprived of the opportunity to address thisstate law issue, which in turn could allow the federal court’s prediction to deter-mine the law in New Mexico.
The potential for a New Mexico federal court decision to have broad implica- tions within New Mexico’s state law is largely due to the fact that, in this instance,such a decision would be beneficial to the plaintiff. The fact that the plaintiff is theparty benefitting from the rejection of the learned intermediary doctrine is signifi-cant as it is the plaintiff who decides whether a particular claim is filed in state orfederal court.108 Furthermore, because there is no mechanism available for a defen-dant to remove a case properly brought in federal court to state court, the only 105. Clark, supra note 88, at 1523 (suggesting that “[h]ow a federal court resolves an open question of state law will affect the rights of future litigants in federal court, especially when the state courts do notauthoritatively resolve the question for a substantial period of time.”).
106. See id. at 1495 (discussing the predictive approach to resolving state law issues).
107. The predictive approach permitted by the Erie Doctrine has the potential to allow for the District Court of New Mexico to “make and implement significant policy choices on behalf of [New Mexico] beforethe state itself has adopted applicable rules [governing the issue] and without any assurance that it will do so[in the future].” Id. at 1539–40.
108. “[V]enue statutes typically let the plaintiff choose among a number of courts in which to file his or her claim.” See Antony Ryan, Principles of Forum Selection, 103 W. VA. L. REV 167, 170 (2000).
\\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO manner in which the New Mexico Supreme Court will be able to answer the ques-tion regarding the learned intermediary doctrine will be if a patient chooses to filea complaint in state court, or the issue is certified to the New Mexico SupremeCourt by either the Federal District Court of New Mexico109 or the New MexicoCourt of Appeals.110 B. Substantive Implications of Rimbert and Its “Erie” Prediction Predicting how the Supreme Court of New Mexico would rule today required the Rimbert court to both be mindful of past decisions within New Mexico while atthe same time keeping an eye towards future trends within New Mexico law.
Therefore, determining whether the New Mexico Supreme Court would formallyadopt the learned intermediary doctrine requires examining how New Mexicocourts have traditionally addressed product liability cases involving a manufac-turer’s failure-to-warn.
In the 1970s and 1980s when the New Mexico Court of Appeals was addressing the liability of manufacturers in the context of failure-to-warn claims, it held that amanufacturer had a non-delegable duty to warn of the risks associated with the useof its product and, therefore, such a duty could not be discharged by a third-party.111 This position was articulated in First National Bank in Albuquerque v.
Nor-Am Agricultural Products, Inc., where the New Mexico Court of Appeals heldthat: [B]y placing goods on the market, a manufacturer represents to the publicthat they are safe; and by packaging and advertising, [the manufacturer]does everything possible to further induce that belief. The middleman, incontrast, is no more than a conduit through which the product reaches theultimate user. [Therefore, a] manufacturer should not be permitted to avoidliability by asserting his lack of direct contact with the user.112 This clearly indicates that in general product liability cases, the New Mexico Courtof Appeals intended to prohibit a manufacturer from being able to insulate itselffrom liability by relying on an intermediary to inform the ultimate consumer of therisks associated with the use of its product.
The New Mexico Court of Appeals, however, indicated a contrary intention when addressing a manufacturer’s failure-to-warn in the prescription drug contextby carving out an exception to the general principle espoused in First NationalBank, and holding that a manufacturer of prescription medications may dischargeits duty to warn by providing the doctor with an adequate warning.113 The fact thatthe court treated failure-to-warn cases in the prescription drug context differentlythan it treated failure-to-warn cases generally appears to be indicative of the 109. See Rule 12-607 NMRA.
110. See Rule 12-606 NMRA.
111. Compare Serna v. Roche Labs., 101 N.M. 522, 684 P.2d 1187 (Ct. App. 1984) (employing the learned intermediary rationale in the prescription drug context), with First Nat’l Bank in Albuquerque v. Nor-Am Agric. Products, Inc., 88 N.M. 74, 537 P.2d 682 (Ct. App. 1975) (holding, generally, that a manufacturer ofproducts cannot delegate its duty to warn to a third party).
112. 88 N.M. 74, 87, 537 P.2d 682, 695.
113. See, e.g., Serna, 101 N.M. at 528, 684 P.2d at 1190.
\\jciprod01\productn\N\NMX\40-3\NMX301.txt court’s intent to take a different approach to liability when the product is a pre-scription drug.
Based on the New Mexico judiciary’s intent to treat failure-to-warn claims in the prescription drug context differently than a typical failure-to-warn claim, it isnot likely that the New Mexico Supreme Court would entirely abandon thelearned intermediary doctrine. There are, however, certain situations where a man-ufacturer’s ability to successfully assert the learned intermediary doctrine as anaffirmative defense to liability should no longer hinge solely on whether the manu-facturer provided the physician with an adequate warning. Instead, when address-ing whether the learned intermediary doctrine should insulate a prescription drugmanufacturer from liability in a failure-to-warn claim, the New Mexico SupremeCourt should require lower courts to determine a manufacturer’s liability on acase-by-case basis. Such an approach would entail a court examining, in addition tothe adequacy of the warning provided to the physician, whether the manufacturerengaged in direct-to-consumer advertising and the extent to which the manufac-turer communicated with the plaintiff’s physician prior to the physician prescribingthe manufacturer’s medication.114 The rationale behind having liability attach on a case-by-case basis is the simple principle of fairness. By rejecting a bright-line rule and examining what is fair andjust the court would be able to recognize instances where actions taken by manu-facturers, prior to litigation, have triggered a duty to warn on behalf of manufac-turers that cannot simply be fulfilled by providing an adequate warning to thephysician. For example, when a manufacturer intentionally communicates with aconsumer with the intent to both influence a patient’s choice in medication andprofit from that communication, it is reasonable for the court to find that thatcommunication gives rise to a duty to warn on behalf of the manufacturer. Moreo-ver, such a duty can be viewed as arising from the fact that the manufacturer ismaking representations regarding the medication to the consumer and in so doingis attempting to influence the consumer’s choice in medication. Because drug man-ufacturers are communicating with both patients and physicians with the intent topersuade each group to use their medications, it is neither fair nor responsible forsociety to impose the duty to warn solely upon physicians. Thus, the direct commu-nications that are occurring between manufacturers and patients should be seen asgiving rise to a duty to warn on behalf of the manufacturers.
Furthermore, when a patient asserts that he has not been adequately warned of the risks associated with the use of a prescription medication, the court shouldattempt to determine the extent to which both the manufacturer and the physicianare liable based on the relationships that exist between each party. Such an inquiryis warranted based on the actions that drug manufacturers are taking in an effortto influence medication selection and the effect such actions are having on patientcare. After examining the extent of the relationships between each party, the courtshould determine, in light of the manufacturer’s relations with a patient or a physi-cian, whether the manufacturer should be permitted to successfully assert thelearned intermediary doctrine as a defense to liability. Therefore, it should no 114. I believe these two factors give rise to a duty to warn as both have a direct impact on the selection of which medication a patient consumes.
\\jciprod01\productn\N\NMX\40-3\NMX301.txt THE LEARNED INTERMEDIARY DOCTRINE IN NEW MEXICO longer be presumed that so long as a manufacturer has provided the physician withan adequate warning that a prescription drug manufacturer will be insulated fromliability in the context of a failure-to-warn claim.
The Rimbert court’s interpretation of New Mexico’s certification procedures has left the status of the learned intermediary doctrine in New Mexico in a state ofambiguity. This ambiguity has created the risk that inconsistent judgments will berendered depending upon where a plaintiff’s complaint is filed.115 Therefore,whether a manufacturer of prescription drugs will be able to successfully assert thelearned intermediary doctrine as a defense to a failure-to-warn claim will dependnot only on whether a plaintiff files a complaint in state or federal court, but on thecurrent status of New Mexico law within that branch of the judiciary. In attemptingto resolve the ambiguity surrounding whether the learned intermediary doctrineshould be available to a manufacturer as a defense to liability, a court should eval-uate the extent of a manufacturer’s liability on a case-by-case basis by examiningthe degree to which a manufacturer’s actions have influenced patient care.
115. The state court will be bound to follow New Mexico Court of Appeals precedent; whereas, the federal court will be free to conduct a fresh Erie analysis on each case presented. See supra note 104.

Source: http://lawlibrary.unm.edu/nmlr/40/3/02-foy-leaned.pdf