Utah Supreme Court hears argument over whether learned‑intermediary rule shields Walgreens in fatal drug‑interaction case

The Utah Supreme Court on Jan. 30, 2019, heard arguments in Walgreens v. Jensen over whether the learned‑intermediary doctrine bars negligence claims against a pharmacy that filled a prescription later linked to a patient’s death.

Brad Strasburth, counsel for Walgreens, told the justices that under Scherer pharmacies are protected when they fill FDA‑regulated prescriptions as written and provide the required written warnings and an offer of counseling. "There is no duty to warn when the drug is written by a physician and it's an FDA regulated prescription," Strasburth said, arguing that Downing did not create a broader exception to that rule for FDA‑regulated drugs.

Chris Higley, counsel for the estate and heirs of Steven Jensen, said the facts here are different: a pharmacist saw a warning screen for a potentially deadly interaction at 7:31 p.m. on Jan. 30, 2019, overrode it within seconds, and dispensed clonazepam at a dose Higley says was four times the FDA‑recommended initial dosage; Jensen was found dead about 33 hours later. "In just 10 seconds, the pharmacist overrode the warning and allowed the prescription sale to proceed," Higley said, arguing that those facts support negligent‑sale and negligence theories and should go to a jury.

A central legal question discussed by the court was whether prior opinions (as counsel discussed Scherer and Downing) created an absolute rule that immunizes pharmacists from negligence claims when they fill prescriptions as written, or whether the court should recognize a narrower rule and permit negligence claims when pharmacists know patient‑specific risks. Several justices pressed both sides on whether the Scherer language is necessary to the holding or whether it should be read more narrowly; one justice asked whether Downing created a categorical exception because the drug there had been withdrawn from the market.

Higley argued the learned‑intermediary doctrine does not eliminate the pharmacist’s duty to act as a reasonably prudent professional. He urged the court to follow decisions (he cited a Nevada opinion) that decline to apply the doctrine when pharmacists are aware of patient‑specific information that makes dispensing unusually dangerous. "It was a patient specific risk because our client, Steven Jensen, was on a very high dose of an opioid, and the FDA had... issued a black box warning against the simultaneous prescription and use of benzodiazepines and clonazepam," Higley said.

Strasburth countered that physicians and pharmacists need clear guidance and that the law relied upon by pharmacy practices treats filling a prescription as written, with the accompanying labeling and offer of counseling, as meeting the pharmacist's duty in ordinary cases. He suggested any expansion of liability would be a significant change in the law and should be carefully circumscribed by the court.

The justices questioned whether the dispute in this case is about the existence of a duty as a matter of law or about the standard of care and causation to be resolved by a jury. Counsel and the bench discussed possible formulations — a bright‑line rule tied to FDA contraindications or an exception for "patient‑specific" risks such as known interactions, excessive dosages, or situations where a pharmacist cannot consult the prescriber because it is after hours.

The court did not rule from the bench. After questioning counsel, the justices announced they would take the matter under advisement and proceeded to the next case on the calendar.