A West Virginia federal judge has remanded a failure-to-warn case, ruling that the pharmacy defendant was not fraudulently joined. Kimberly Hartman, a West Virginia citizen, went to Trivillian’s Pharmacy of Kanawha City Inc. to fill a prescription for Ambien’s generic equivalent, Zolpoidem. While on the medication, Hartman lost control of her vehicle and was seriously injured. Hartman brought failure-to-warn claims against Caraco Pharmaceuticals Laboratories Ltd. And Trillivan’s to the Circuit Court. Both Caraco and Trivillian sought dismissal of the claims against the pharmacy, asserting that Section 30-5-12(a), as well as the learned intermediary doctrine, relieve the pharmacy of liability. Section 30-5-12(a) states that “all persons, whether licensed pharmacists or not, shall be responsible for the quality of all drugs, chemicals and medicines they may sell or dispense, with the exception of those sold in or dispensed unchanged from the original retail package of the manufacturer, in which even the manufacturer shall be responsible.”
Judge John T. Copenhaver Jr. referred to previous case law that could be interpreted either way in regards to Section 30-5-12(a), but refers to one case that finds uncertainty in regards to the learned intermediary doctrine. He states, “this incertitude respecting both legal issues dooms defendants’ fraudulent joinder challenge. Simply put, ‘The party alleging fraudulent joinder must show that the plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiff’s favor.’ Given the uncertainties here in both the factual and legal landscape, Caraco and Trivillian’s cannot satisfy their heavy burden.” As we witnessed in the Casey Anthony trial, it is not enough to make accusations; you must also prove it. And just like the prosecution in the Casey Anthony trial, the defendants here were unable to prove that Kimberly Hartman could not establish a claim for their liability.
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