Kopon Airdo Wins Summary Judgment for Its Client Based on the “Learned Intermediary” Doctrine
Andrew Kopon Jr., Lisa DeLeon and Michael A. Airdo recently won summary judgment for its pharmacy client. Plaintiff, a 42 year old union electrician, alleged that he suffered tardive dyskinesia as a result of taking the medication Reglan for an extended period of time. Tardive dyskinesia causes uncontrollable stiff, jerky movements of various parts of the body. As a result, plaintiff claimed that he was permanently disabled and unable to continue to work as an electrician. His wife also filed suit for the loss of his consortium due to his claimed disabilities. On September 29, 2017, Judge William E. Gomolinski granted summary judgment on behalf of Kopon Airdo’s client, a major national retailer and pharmacy chain and recently denied plaintiffs’ motion for a rehearing.
Plaintiff was diagnosed with gastroparesis in 2008. He started taking Reglan (“Metoclopramide”) in 2008, until he was diagnosed with tardive dyskinesia in 2014. Plaintiff claimed that the FDA issued the following “black- box” warning in 2009:
“WARNING: TARDIVE DYSKINESIA”
Treatment with metoclopramide can cause tardive dyskinesia, a serious movement disorder that is often irreversible. The risk of developing tardive dyskinesia increases with duration of treatment and total cumulative dose.
Metoclopramide therapy should be discontinued in patients who develop signs or symptoms of tardive dyskinesia. There is no known treatment for tardive dyskinesia. In some patients, symptoms may lessen or resolve after metoclopramide treatment is stopped.
Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases where therapeutic benefit is thought to outweigh the risk of developing tardive dyskinesia.
Plaintiffs contended that the pharmacy should not have filled the script for metoclopramide for more than 12 weeks without verbally warning the customer about the duration warning for metoclopramide. Plaintiffs further argued that the pharmacy should not have filled the medication order for six years without first calling the customer’s physician to inquire about the extended duration of metoclopramide therapy. In granting the motion for summary judgment, the court stated, “[a]ccordingly, Plaintiff’s proposed extension of the pharmacist’s duty exceeds the limited scope of the contraindication exception defined in Happel. Moreover, dispensing a drug in excess has been consistently ruled by Illinois courts not to be a determination made by the pharmacist.”