Decided: July 13, 1993.
NANCY STRUMPH, PLAINTIFF-RESPONDENT,
SCHERING CORPORATION, DEFENDANT-APPELLANT
On appeal from the Superior Court, Appellate Division, whose opinions are reported at 256 N.J. Super. 309, 323, 606 A.2d 1140 (1992).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler and Stein. For affirmance -- Justice O'Hern. O'Hern, J., Dissenting.
[133 NJ Page 34]
The judgment is reversed, substantially for the reasons expressed in Judge Skillman's Dissenting opinion for the Appellate Division, reported at 256 N.J. Super. 309, 323, 606 A.2d 1140 (1992).
O'HERN, J., Dissenting.
I would affirm the judgment below substantially for the reasons stated by the majority of the Appellate Division, 256 N.J. Super. 309, 606 A.2d 1140 (1992). I write only to emphasize the special significance of the learned-intermediary doctrine in this case. The theory of that doctrine is that a pharmaceutical manufacturer has no independent duty to warn patients of the side effects of medication. The manufacturer's duty is to warn the physician, the learned intermediary, who in turn is presumed by the law to have informed the patient of the side effects. Niemiera v. Schnieder, 114 N.J. 550, 555 A.2d 1112 (1989). Just as we apply an "objective test" to evaluate the informed-consent rights of the patient in terms of what a prudent person in the patient's position would have done if suitably informed of the risks of treatment, Largey v. Rothman, 110 N.J. 204, 216, 540 A.2d 504 (1988), we should apply an objective test to evaluate what a prudent physician would have done if informed of the risks of this medication. This case presents a factual issue on whether a prudent physician would have informed plaintiff of the side effects of her medication. See
[133 NJ Page 35]
Bravman v. Baxter Healthcare Corp., 984 F. 2d 71, 75 (2nd Cir. 1993) (holding that a question on proximate cause remained for resolution despite testimony by doctor that if he had been informed by healthcare company of defect in mechanical heart valve he still would not have warned patient).