PEREZ v. WYETH LABORATORIES INC. & THE WISDOM OF AN ADVERTISING EXCEPTION TO THE LEARNED INTERMEDIARY RULE

Abstract

On August 9, 1999, the Supreme Court of New Jersey issued the first high-level court opinion to recognize a direct-to-consumer ("DTC") advertising exception to the learned intermediary rule. Although the manufacturer in Perez v. Wyeth Lab. Inc. had satisfied its duty to provide medical professionals with full warnings, the court held that the usual protection offered by the learned intermediary rule was not automatically available since the manufacturer had engaged in DTC advertising. Because the manufacturer's advertising campaign on television and in women's magazines had failed to warn of certain side effects and complications attendant to removal of its Norplant implants, the court held that the question of whether inadequate warnings constituted proximate cause should be submitted to a jury.