Yes, Michigan Applies the Learned Intermediary Doctrine

Faegre Drinker Biddle & Reath LLP

 

For decades, both state and federal courts in Michigan have routinely applied the learned intermediary doctrine in products liability cases involving prescription medical products. Under the doctrine, a manufacturer’s duty to warn runs not to a plaintiff but to the plaintiff’s prescribing physician. Although “[e]very state in the country, along with the District of Columbia and Puerto Rico, has adopted the learned intermediary doctrine in some iteration,” Dearinger v. Eli Lilly & Co., 510 P.3d 326, 329 (Wash. 2022) — including courts applying Michigan law — a Michigan federal court recently expressed doubt about the doctrine’s applicability and certified a question to the Michigan Supreme Court. The answer, if the court accepts the question, should be clear — yes, Michigan applies the learned intermediary doctrine.

In Osos v. NuVasive, Inc., No. 23-CV-12331, 2024 WL 3585092 (E.D. Mich. July 30, 2024), the plaintiff alleged injury from an implantable medical device manufactured by the defendant. The defendant filed a motion to dismiss, which among other things argued that the plaintiff’s failure to warn claim was barred by the learned intermediary doctrine because she had not alleged any failure to warn the implanting surgeon. 2023 WL 9322029 (motion to dismiss). The plaintiff did not take issue with the learned intermediary doctrine in general but argued that, because she alleged that the implanting surgeon was an inventor of the product and an agent of the defendant, there was no true “intermediary” between the defendant and the plaintiff. 2023 WL 11081568 (opposition). Thus, according to the plaintiff, the case represented an exception to the learned intermediary doctrine.

Despite the parties’ agreement that the learned intermediary doctrine exists in Michigan, the court expressed doubt. It began by noting that the Michigan Supreme Court had acknowledged the learned intermediary doctrine as applied to prescription drugs in Smith v. E. R. Squibb & Sons, Inc., 273 N.W.2d 476 (Mich. 1979). However, the Osos court dismissed this statement as dicta in light of the Michigan Supreme Court’s subsequent refusal, in a 4-3 decision, to answer a Michigan federal court’s certified question asking whether the doctrine exists in that state. See generally In re Certified Questions from U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 358 N.W.2d 873 (1984). Of note, the In re Certified Questions majority — speaking 40 years ago — based its refusal on a fear of “hamper[ing] . . . the development of Michigan law” and thus left the decision to the legislature. But this was not a wholesale punt to the legislature; the majority recognized that “legislative inaction” could force the court “to make the choices necessary for deciding this question.” Acknowledging this, but observing that the Michigan Supreme Court had never revisited the question, the Osos court denied the motion to dismiss and certified two questions to the Michigan Supreme Court — first, whether In re Certified Questions had held that the learned intermediary doctrine does not exist in Michigan unless and until the legislature creates it, and second, if the question is one for the courts, whether and to what extent the doctrine applies in Michigan.

The Osos court’s discussion of the learned intermediary doctrine contained relatively limited authority. Interestingly, the court did not address any case more recent than 1991 and did not cite a single Michigan Court of Appeals decision that declined to apply the doctrine. On the contrary, it cited two Michigan Court of Appeals cases that applied the doctrine in the wake of Smith and acknowledged the defendant’s reliance on a case from 1995 — Brown v. Drake-Willock International, Ltd., 530 N.W.2d 510 (Mich. Ct. App. 1995) — that held the learned intermediary doctrine applies in both prescription drug and medical device cases.

Critically, the Osos court also did not cite the case on which the plaintiff relied — Mowery v. Crittenton Hospital, 400 N.W.2d 633 (Mich. Ct. App. 1986), in which the Michigan Court of Appeals held that In re Certified Questions prohibited lower courts from creating a duty to warn patients directly, which duty did not yet exist. In effect, Mowery held that the learned intermediary doctrine applies by default — even under In re Certified Questions — until the Michigan Supreme Court or legislature says otherwise. Neither has done so, and the Michigan Court of Appeals has consistently acknowledged the doctrine ever since Mowery. See, e.g., Nichols v. Clare Cmty. Hosp., 476 N.W.2d 493 (Mich. Ct. App. 1991); Brown, 530 N.W.2d 510; Muszynski v. Auto. Chem. Corp., No. 172735, 1996 WL 33358101 (Mich. Ct. App. Sept. 17, 1996). Federal courts in Michigan have likewise applied the doctrine consistently for decades. See, e.g., Avendt v. Covidien Inc., 262 F. Supp. 3d 493 (E.D. Mich. 2017); Hill v. Bayer Corp., 485 F. Supp. 3d 843 (E.D. Mich. 2020).

Michigan courts have applied the learned intermediary doctrine consistently for decades. Perhaps that is because, as Mowery held, the courts were not free to create a duty to warn patients directly in the wake of In re Certified Questions. Thus, courts were required to apply the doctrine in effect even if not by name. Or, perhaps it is because decades of “legislative inaction” have now “constrained [courts] to make the choices necessary for deciding” whether the doctrine applies, as previewed by In re Certified Questions 40 years ago. In either event, we predict that the doctrine will continue to apply after Osos is resolved. Michigan product liability law has already seen one major change this year; it does not need another.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Faegre Drinker Biddle & Reath LLP

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