Vol. 78, No. 3, March 2005

• The Sophisticated User Doctrine Arrives

The Learned Intermediary Doctrine

A cousin of the sophisticated user doctrine also is garnering attention in Wisconsin. The learned intermediary doctrine has been applied in other states to "failure to warn" claims against pharmaceutical manufacturers.²⁸ The premise underlying the learned intermediary doctrine is similar to that underlying the sophisticated user doctrine and contemplates a level of knowledge by the purchaser who can adequately warn any end user about the danger of the product. The difference between the two doctrines, as explained by the Connecticut Supreme Court, is that the learned intermediary doctrine contemplates only one intermediary, a doctor, between a manufacturer and an end user.²⁹ The physician/patient relationship provides more assurance that the patient will receive the warnings pertinent to her case. The sophisticated user doctrine, on the other hand, could conceivably insulate a manufacturer when there are multiple intermediaries between the manufacturer and end user.

The Wisconsin Court of Appeals first encountered the learned intermediary doctrine in a 2004 appeal of a failure-to-warn claim against a pharmaceutical company over an obscure side effect of an oral contraceptive.³⁰ The court of appeals decided the case on grounds other than the learned intermediary doctrine and therefore avoided confronting whether Wisconsin should adopt the learned intermediary doctrine. In doing so, the court of appeals examined both sides of the circuit court's use of a hybrid learned intermediary doctrine and hinted that some form of the doctrine may eventually be adopted into Wisconsin law.³¹

Wisconsin Lawyer