May 4, 2023Client Alert

Wisconsin Supreme Court Misses Opportunity to Adopt Learned Intermediary Doctrine in Wisconsin Product Liability Law

A recent Wisconsin Supreme Court decision muddied its already muddled product liability waters by failing to address the status of the Learned Intermediary Doctrine under Wisconsin law. In Rennick v. Teleflex Medical Inc., 2023 WI 34, an evenly divided Wisconsin Supreme Court upheld a per curiam – i.e., nonprecedential – Court of Appeals decision holding that the Learned Intermediary Doctrine did not apply to a plaintiff’s duty-to-warn claim. In so doing, the Court has left the state of the law completely unclear as to whether the Doctrine applies to Wisconsin product liability cases involving prescription drugs and medical devices.

Under the Learned Intermediary Doctrine, a drug or device manufacturer fulfills its duty to warn of its product’s risks by informing the prescribing physician – the eponymous “learned intermediary” – of those risks. There is no duty to warn the patient directly. And, even if the manufacturer does not provide adequate warnings to the physician, the patient-plaintiff still must show that proper warnings would have altered the physician’s behavior in prescribing or utilizing the prescription product or medical device, which change would have avoided the patient-plaintiff’s injuries.

A majority of jurisdictions nationwide have adopted the Doctrine. High courts in thirty-seven jurisdictions, as well as several other federal and state courts, and the Third Restatement of Torts, have all expressly adopted the Learned Intermediary Doctrine. By doing so they have provided much-appreciated clarity, predictability, and consistency in duty-to-warn cases involving prescription medical products.

Unfortunately, after years of litigation in Rennick, Wisconsin’s relationship with the Learned Intermediary Doctrine remains unclear and analytically complicated. While there are individual cases in Wisconsin jurisprudence that weigh in on whether Wisconsin should follow the Doctrine, that authority is mixed. Additional judicial work – potentially following Rennick’s second trip through the appellate ringer, if and when the matter proceeds to trial – is needed to untangle the knot created by Rennick’s (first) path to the Wisconsin Supreme Court.

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