Wednesday, November 21, 2012

More Closure of the Learned Intermediary Frontier

Last year, we blogged about the "closing of the learned intermediary frontier," in that the last state in the union not to take a position about the learned intermediary rule - Rhode Island - had finally done so.  It was a bit of a stretch, our citation was to an oral transcript, but the trial court's ruling was quite definitive.

Well, by way of blog reader Adam Michael at Pepper, now we can do better than that.  Yesterday, the Second Circuit - in a completely different case - agreed with the prediction that Rhode Island would adopt the learned intermediary rule:

Here, for substantially the same reasons as those stated in the district court’s decision, we conclude that the Rhode Island Supreme Court would likely adopt the learned intermediary doctrine if faced with the question of whether to do so under circumstances similar to these.

Greaves v. Eli Lilly & Co., No. 11-5346, slip op. at 3 (2d Cir. Nov. 20, 2012) (citation and footnote omitted).  Uufortunately, Greaves is not a precedential decision, but that doesn't prevent it from being another step in the right direction.

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