But even that favorable result still left intact Rimbert’s erroneous conclusions about the learned intermediary rule on the books. So we were pleased when, several years after Rimbert, a federal MDL judge rejected that conclusion and opined that New Mexico did indeed follow the learned intermediary rule along with all but one other United States jurisdiction. See In re Trasylol Products Liability Litigation, 2011 WL 2586218 (S.D. Fla. June 23, 2011). The Trasylol court dismissed Rimbert with an unadorned “but see” footnote citation and followed the prior Court of Appeals precedent. Id. at *11 n.4.
But now we have even better news. The New Mexico Court of Appeals continues to follow the learned intermediary rule. We had been a little nervous that the most recent of the prior five state court opinions had been in 1984. But no longer. In Silva v. SmithKlineBecham Corp., No 31,276, slip op. (N.M. App. Feb. 7, 2013), in yet another suicide case, the Court of Appeals reiterated that the learned intermediary rule applies:
To satisfy the burden of proving causation in the present case, Plaintiffs must show that adequate warnings would have altered [the prescriber’s] decision to treat Patient with [the drug]. [Long citation to Richards]. As such, if it is factually established that [the prescriber] would have prescribed [the drug] to patient even if [the manufacturer] had provided a more adequate warning about the risk . . ., then Plaintiffs cannot prove the causation element of its claims of inadequate warning.
Silva, slip op. at 7. See also Id. at 6 (quoting Richards, 527 P.2d at 1077, for the proposition that “[o]rdinarily the manufacturer’s duty to warn of the dangers of prescription drugs is to the attending physician, not the patient”).
Thus the Rimbert aberration is now even further on the way to extinction. Please make a note if this, if you might be litigating under New Mexico law, because one peculiarity of Silva is that the phrase “learned intermediary” doesn’t appear anywhere in the opinion, so it’s possible that the usual search (instead of shepardizing Richards) might miss it.