The Wisconsin Court of Appeals recently signaled that, if given the right case, it would address the question of whether Wisconsin should join the majority of states in recognizing the learned intermediary doctrine. In Rennick v. Teleflex Medical Incorporated, Appeal No. 2020AP1454 (April 5, 2022), the court of appeals reversed an order granting a motion for summary judgment on the grounds that the circuit court erroneously applied the learned intermediary doctrine in a products liability claim. The case arose out of the plaintiff’s medical procedure to remove a cancerous tumor on his kidney. The surgeon performing the procedure used Teleflex’s Hem-o-lok clips to reinforce and secure sutures. Following the surgery, the plaintiff experienced pain and other symptoms, including internal bleeding. Ultimately, the plaintiff’s kidney was removed.
The plaintiff sued Teleflex, alleging that Teleflex’s clips failed to stay attached and migrated throughout his body, causing him pain, internal bleeding, and other injuries. He asserted claims for negligence; strict product liability pursuant to Wis. Stat. § 895.047, for defective manufacture, design, and inadequate instructions or warnings; strict liability misrepresentation under Restatement (Second) of Torts § 402(A); and untrue, deceptive, or misleading advertising related to the clips pursuant to Wis. Stat. § 100.18.
Teleflex’s motion for summary judgment argued that learned intermediary doctrine—not yet adopted in Wisconsin—should apply and, thus, negate Wisconsin’s general rule that a manufacturer or supplier of a product has a duty to warn consumers directly of dangers associated with the use of its product. “The [learned intermediary] doctrine ‘holds that the manufacturer of a prescription drug or medical device fulfills its duty to warn of the product’s risks by informing the prescribing physician of those risks.’” Rennick, ¶ 16 (citing In re: Zimmer, NextGen Knee Implant Prods. Liabl. Litig., 884 F.3d 746, 751 (7th Cir. 2018). “Thus, if the doctrine applies, it defeats a claim that a manufacturer had a duty to warn the patient directly of any risks associated with its product.” Id. The circuit court agreed and granted Teleflex’s motion on all claims. While the circuit court was aware that Wisconsin had not yet adopted the learned intermediary doctrine, it followed Teleflex’s line of reasoning that, because the Seventh Circuit in In re: Zimmer predicted that Wisconsin would adopt the doctrine, the circuit court should do so now. In re: Zimmer, 884 F.3d at 752.
The court of appeals reversed but sidestepped the central question of whether to adopt the learned intermediary doctrine in Wisconsin. Instead, it concluded that the doctrine would not apply to the specific facts of this case. The court of appeals characterized the question of whether the manufacturer has informed “the prescribing physician” of the risks associated with its products as a threshold issue for the application of the doctrine. Because Teleflex provided no warning to the plaintiff’s surgeon, the court held that the doctrine would not apply.
In looking to the substance of the warnings as a threshold issue, the court’s analysis misapplied the learned intermediary doctrine. The learned intermediary doctrine shifts the duty to warn from the patient to the provider, and whether the provider was warned is not a threshold question. Indeed, just as a plaintiff in a slip and fall case could not prevail by arguing that the defendant did not tell her that water was slippery, under the learned intermediary doctrine, a plaintiff cannot prevail by arguing that a doctor was not warned about a risk the doctor had taken into account.
Regardless, while the court of appeals could have expressly declined to adopt the learned intermediary doctrine, it did not. This suggests that the doctrine may still yet become the law in Wisconsin. The next opportunity for that, indeed, may in fact be Rennick, as Teleflex has filed a petition for review with the Wisconsin Supreme Court. Whether it’s Rennick or a future case, we will continue following this issue. If you have any questions about the learned intermediary doctrine, or products liability in general, please contact Gass Turek.