Pharmacies Drawn into Product Liability Lawsuit

Larry M. Simonsmeier, JD, RPh
Published Online: Saturday, November 1, 2003

Issue of the Case:

    A federal court in Louisiana was asked to determine whether pharmacies that sold a prescription drug could be liable, along with the manufacturer, for selling and misrepresenting a defective product.

Facts of the Case:

    A group of consumers brought a product liability action against the manufacturer of Propulsid (cisapride) as well as certain pharmacies that sold the product. The plaintiffs alleged that the prescription drug carried the risk of serious cardiovascular side effects. They contended that they suffered physical and emotional damages from the use of the drug.

    With regard to the pharmacy defendants in particular, the plaintiffs alleged that the pharmacies offered professional opinions and advice to the prescribing physicians and intentionally or negligently misrepresented the effects of the drug. Furthermore, it was claimed that the pharmacies misrepresented to the consumers themselves the possible side effects.

    Finally, the plaintiffs contended that the pharmacies, in stocking and selling Propulsid, acted as a conduit for the alleged defective product and breached both express and implied warranties that the drug was safe for its intended purpose. The pharmacies asked that the complaint be dismissed for failure to state a claim on which relief can be granted.

The Court?s Ruling:

    Federal procedural rules require that such motions to dismiss be construed liberally in favor of the plaintiff, assuming that all factual allegations are true. In this regard, the pharmacies? motion to dismiss was granted as to claims of selling a defective product, but denied as to claims of misrepresentation.

The Court?s Reasoning:

    Under Louisiana law and the law of many states, a ?manufacturer? is liable to consumers if a product causes harm to users because it is unreasonably dangerous for normal use. A manufacturer includes any entity that labels a product as its own or that exercises control over the design or quality of the product. The court ruled that the pharmacies did not fall under this definition, but instead they were merely ?sellers? and not subject to liability for defective products.

    As to the claim of misrepresentation, however, the court noted that in Louisiana pharmacists have a duty to do more than just accurately fill prescriptions. They must also inquire of the prescribing physician when obvious errors or mistakes are apparent on the face of the prescription. The defendants countered that there is no basis for holding a pharmacy liable for dispensing an FDA-approved drug in accordance with a lawful prescription from a licensed physician.

    Yet, the allegations in this case contended that the pharmacies affirmatively misrepresented the side effects of the drug while acting as ?independent advisors? to the prescribing physicians. Having to accept the truth of these allegations at this point, the court ruled that the pharmacies may have voluntarily assumed a duty of care that is not ordinarily imposed. Thus, these claims survived the motion to dismiss. There was a hint as to the weakness of the allegations, however, when the court went on to state that the plaintiffs ?may encounter a significant challenge in sustaining a subsequent motion for summary judgment.?

    In summary, because the pharmacies neither made the product nor had any input into its design, they were not manufacturers and could not be liable under product liability law. If, however, the pharmacies acted as ?independent advisors? to the prescribing physicians, they may have voluntarily assumed a duty of care that could make them liable for misrepresentation.

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