This opinion is subject to revision before final
publication in the Pacific Reporter
2025 UT 41
IN THE
SUPREME COURT OF THE STATE OF UTAH
JILL JENSEN, individually and on behalf of the Estate of
Steven Jensen, deceased, DOUG JENSEN, and PATRICIA JENSEN,
Appellees,
v.
WALGREEN CO.
Appellant.
No. 20240315
Heard January 13, 2025
Filed October 2, 2025
On Appeal of Interlocutory Order
Third District Court, Salt Lake County
The Honorable Keith A. Kelly
No. 210900485
Attorneys:
Christopher P. Higley, Salt Lake City, for appellees
Elizabeth Willey, Bradley M. Strassberg, Salt Lake City,
for appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE HAGEN, and JUSTICE POHLMAN joined.
__________________________________________________________
Additional attorneys: David Schur, Washington, D.C.,
Benjamin G. Shatz, Los Angeles, Cal., Michael D. Zimmerman,
Troy L. Booher, Salt Lake City, for amicus curiae National
Association of Chain Drug Stores, in support of appellant.
JENSEN v. WALGREEN CO.
Opinion of the Court
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Steven Jensen suffered from severe chronic pain and took
oxycodone for many years to manage his condition. After Jensen
went to his doctor seeking help for an unrelated ailment, his doctor
prescribed an additional drug, clonazepam. When taken together,
oxycodone and clonazepam can pose serious health risks. The FDA
mandates a black box warning—its strongest advisory—due to the
severity of the risk when these drugs are prescribed together. When
Jensen went to a Walgreens pharmacy to fill his new clonazepam
prescription, a warning flashed on the pharmacist’s computer. But
the pharmacist manually overrode the warning and sold Jensen the
prescription. The next day, Jensen passed away from oxycodone
and clonazepam toxicity.
¶2 Jensen’s family and estate sued Walgreens, alleging that
the pharmacist was negligent in various ways, including failing to
warn Jensen of the risk of taking the two drugs together. Walgreens
moved for summary judgment in the district court, arguing that the
pharmacist had no duty to warn Jensen because of a doctrine called
the “learned intermediary rule.” In the negligence context, this rule
creates an exception to a pharmacist’s general duty of care to
patients. Under the learned intermediary exception, when a
pharmacist fills a prescription for an FDA-approved drug, the
pharmacist has no duty to warn a patient of the drug’s general risks
because it is assumed that the physician who prescribed the drug—
the “learned intermediary”—is best positioned to warn the patient,
given their relationship. The district court ruled that disputes of
material fact prevented it from granting summary judgment to
Walgreens on the basis of the learned intermediary rule. And
Walgreens filed this interlocutory appeal.
¶3 The question before us is whether the learned
intermediary rule applies here. We conclude that it does not. The
rule excuses pharmacists from warning of the general risks
associated with FDA-approved medications. But this case is
different in that it involves a known risk that was specific to Jensen.
Given Jensen’s ongoing use of oxycodone, taking clonazepam
posed a heightened risk to him, specifically. In these circumstances,
we conclude that the learned intermediary rule does not create an
exception to a pharmacist’s general duty to act as a reasonably
prudent pharmacist would in the same situation.
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Opinion of the Court
¶4 Accordingly, we agree with the district court’s denial of
Walgreens’ summary judgment motion. And because we also reject
an alternative argument for reversal advanced by Walgreens, we
affirm and remand for further proceedings.
BACKGROUND1
¶5 Decedent Steven Jensen experienced severe chronic pain.
To manage his pain, Jensen was prescribed oxycodone, which he
took for many years. When an unrelated health issue arose, Jensen
and his wife visited his primary care doctor, Dr. Cosgrave. He
diagnosed Jensen with anxiety and depression, and he prescribed
clonazepam to address it. Dr. Cosgrave knew Jensen was already
taking oxycodone.
¶6 Clonazepam is a benzodiazepine. Oxycodone is an opioid.
When taken together, the combination of the two drugs has been
associated with severe respiratory side effects, such as slow or
labored breathing and, in some cases, death. Because of these
known interactions, in 2016 the FDA added what is commonly
called a “black box warning” to clonazepam and oxycodone when
they are prescribed in combination. Black box warnings are used to
warn of “a serious risk that can imply death or serious harm.”
¶7 In the appointment with Dr. Cosgrave, Jensen and his wife
expressed concern about adding clonazepam to Jensen’s existing
medications, and they specifically asked if it might cause him side
effects. Dr. Cosgrave assured the couple that it would be fine and
proceeded to prescribe clonazepam at a dose of one milligram,
twice a day. Jensen took his new clonazepam prescription to
Walgreens to have it filled that same evening.
¶8 Walgreens was aware of Jensen’s existing oxycodone
prescription. And when Walgreens’ pharmacist entered the
prescription into their system, Jensen’s insurer flagged the
potential for a severe negative interaction between Jensen’s existing
oxycodone prescription and his new clonazepam prescription. This
warning opened on the pharmacist’s computer screen. But the
pharmacist manually overrode the warning and filled the
prescription without calling Dr. Cosgrave’s office to make
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1 “In reviewing a denial of summary judgment, we view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Huitron v. Kaye, 2022 UT
36, ¶ 7 n.3,
517 P.3d 399 (cleaned up). We state the facts accordingly.
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Opinion of the Court
inquiries. Notably, however, Dr. Cosgrave testified that even if the
pharmacist had done so, he would have instructed the pharmacist
to fill the prescription exactly as written.
¶9 Whether and to what extent the pharmacist warned Jensen
of potential negative side effects is disputed. However, Jensen’s
wife testified that if Jensen had been warned about the risk of
taking clonazepam along with his oxycodone prescription, he
would have told her because they regularly spoke about Jensen’s
medications.
¶10 Less than thirty-six hours after the Walgreens pharmacist
filled Jensen’s clonazepam prescription, Jensen was found dead on
the floor of his bedroom. An autopsy determined that the “cause of
death [was] oxycodone clonazepam toxicity.”
¶11 Jensen’s wife, his parents, and his estate (Plaintiffs) timely
sued Walgreens and others, alleging that the pharmacist had been
negligent in, among other things, not warning Jensen about the
dangers of taking oxycodone and clonazepam together. After
discovery, Walgreens moved for summary judgment. It argued
that an exception to a pharmacist’s general duty of care to patients,
referred to as the “learned intermediary rule,” applied in these
circumstances because the pharmacist had dispensed an FDA-approved drug exactly as prescribed by Jensen’s physician.
Accordingly, only the physician—the “learned intermediary”—
had a duty to warn Jensen of the risks of taking the two drugs
together. The district court disagreed and denied Walgreens’
motion.
¶12 The court of appeals granted Walgreens’ petition for
interlocutory review and, at Walgreens’ suggestion, recommended
that we recall the case. We have jurisdiction under Utah Code
section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶13 The existence and scope of a pharmacist’s duty to a patient
is a question of law, which we review for correctness. Downing v.
Hyland Pharmacy, 2008 UT 65, ¶ 5,
194 P.3d 944. And we review the
district court’s “ultimate grant or denial of summary judgment for
correctness.” Orvis v. Johnson,
2008 UT 2, ¶ 6,
177 P.3d 600 (cleaned
up).
ANALYSIS
¶14 The primary question before us is whether the learned
intermediary rule applies here to shield Walgreens from liability as
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Opinion of the Court
a matter of law. Walgreens’ main argument is that we already
answered this question in Schaerrer v. Stewart’s Plaza Pharmacy, Inc.,
2003 UT 43,
79 P.3d 922, a prescription drug case in which we
applied the learned intermediary rule to a strict liability claim.
Based on its reading of Schaerrer, Walgreens asserts that stare
decisis mandates a reversal. But that is an incorrect reading of
Schaerrer.
¶15 We first analyze our precedent and the contours of the
learned intermediary rule. In a negligence case, the rule exempts
pharmacists from their duty to warn of the general risks of an FDA-approved prescription drug. Outside of this, the rule does not
impact a pharmacist’s general duty of care to patients. Here, the
Plaintiffs allege that the pharmacist was aware that the clonazepam
prescription created a patient-specific risk to Jensen. We conclude
that in these circumstances, the rule does not except the pharmacist
from the general duty of care owed to Jensen.
¶16 We then address an alternative ground for reversal
advanced by Walgreens regarding causation. And we conclude
that disputes of material fact preclude summary judgment on that
basis, as well.
I. THE LEARNED INTERMEDIARY RULE
¶17 Walgreens argues that the Plaintiffs cannot prevail on their
negligence claim because the pharmacist did not have a duty to
warn Jensen of the risks of taking clonazepam when he was already
taking oxycodone. To prevail on a negligence claim, a plaintiff must
establish four elements: the existence of a duty, a breach of the
standard of care, causation, and damages. Hunsaker v. State, 870
P.2d 893, 897 (Utah 1993). Walgreens asserts that here, the
pharmacist had no duty to warn Jensen as a matter of law because
of the learned intermediary rule.
¶18 We adopted the learned intermediary rule in Schaerrer v.
Stewart’s Plaza Pharmacy, Inc., in the context of a strict liability claim.
2003 UT 43, ¶¶ 20–22,
79 P.3d 922. We first undertook to explain
the development of the rule.
Id. ¶¶ 16–20. By way of background,
we noted that this court had “adopted the doctrine of strict
products liability set forth in section 402A of the Restatement
(Second) of Torts (1965) in Hahn v. Armco Steel Co.,
601 P.2d 152, 158
(Utah 1979).” Schaerrer,
2003 UT 43, ¶ 16. In strict products liability,
“[o]ne who sells any product in a defective condition unreasonably
dangerous to the user or consumer . . . is subject to liability for
physical harm thereby caused to the ultimate user or consumer,” if
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Opinion of the Court
certain conditions are met. Id. (quoting RESTATEMENT (SECOND) OF
TORTS § 402A (AM. L. INST. 1965)).
¶19 About twelve years later, in Grundberg v. Upjohn Co., 813
P.2d 89, 92 (Utah 1991), we adopted comment k to section 402A,
which “recognized an exception to strict liability for manufacturers
and sellers of unavoidably unsafe products.” Schaerrer,
2003 UT 43,
¶ 17. Comment k acknowledges the existence of some products,
“especially common in the field of drugs,” Grundberg,
813 P.2d at
91 (cleaned up), “which, in the present state of human knowledge,
are quite incapable of being made safe for their intended and
ordinary use,”
id. (cleaned up), but are still worthy of manufacture
and sale because of the benefits they provide. We adopted
comment k and held that, “seller[s] of [unavoidably unsafe]
products, when the products are properly prepared and marketed
and distributed with appropriate warnings, should not be held
strictly liable for the unfortunate consequences attending their
use.”
Id. at 92 (cleaned up).
¶20 And we concluded in that case that “all prescription drugs
should be classified as unavoidably dangerous in design because
of their unique nature and value, the elaborate regulatory system
overseen by the FDA, the difficulties of relying on individual
lawsuits as a forum in which to review a prescription drug’s design,
and . . . significant public policy considerations.” Id. at 95 (referring
to the policy considerations discussed by the California Supreme
Court in Brown v. Superior Court,
751 P.2d 470, 478–80 (Cal. 1988)).2
Thus, in Grundberg, we concluded that manufacturers and sellers of
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2We made an important observation in Grundberg, which
remains true whenever we consider a restatement:
The American Law Institute’s restatements are
drafted by legal scholars who attempt to summarize
the state of the law in a given area, predict how the
law is changing, and suggest the direction the law
should take. The restatement serves an appropriate
advisory role to courts in approaching unsettled
areas of law. We emphasize, however, that section
402A of the Restatement (Second) of Torts . . . is not
binding on our decision in this case except insofar as
we explicitly adopt its various doctrinal principles.
Grundberg v. Upjohn Co., 813 P.2d 89, 95 (Utah 1991).
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prescription drugs could not be held strictly liable for design
defects. Id. at 99.
¶21 Importantly, however, this holding did not immunize
manufacturers or sellers of prescription drugs from strict liability
claims premised on a failure to warn. Schaerrer, 2003 UT 43, ¶ 19.
Under Utah law, a manufacturer can be subject to strict liability for
failure to warn if the “manufacturer knows or should know of a
risk associated with its product [and] the absence or inadequacy of
warnings renders that product unreasonably dangerous.” House v.
Armour of Am., Inc.,
929 P.2d 340, 343 (Utah 1996) (cleaned up).
¶22 This is where the learned intermediary rule fits in. As we
will explain, it essentially exempts manufacturers and sellers of
FDA-approved drugs from any obligation to warn the ultimate
consumers of the general risks of those drugs, based on the premise
that physicians are in the best position to do so. In Schaerrer v.
Stewart’s Plaza Pharmacy, Inc., this court adopted the learned
intermediary rule in the strict product liability context and applied
it to both manufacturers of prescription drugs and pharmacists, as
sellers of prescription drugs. 2003 UT 43, ¶ 22. Under this rule, a
manufacturer of prescription drugs discharges its duty to warn by
informing the medical profession of the product’s risks, rather than
informing the patient directly. Id. ¶ 20. The rationale of the rule is
that the physician is best positioned to evaluate the risks and
benefits of the drug in light of the “unique needs and
susceptibilities of each patient.” Id. Thus, “[t]he physician, after
having received complete and appropriate warnings from the drug
manufacturer, acts as a learned intermediary between the drug
manufacturer and the patient when preparing the drug
prescription.” Id. (cleaned up).
¶23 In adopting the rule in Schaerrer, we concluded that it
“must carry through to the pharmacist as well to serve its purpose
fully.” Id. ¶ 22 (cleaned up). We emphasized that pharmacists, like
manufacturers, operate within a highly regulated system, and they
cannot dispense prescription medication to a patient without a
physician’s prescription. Id. And we were concerned that if
pharmacists could be held strictly liable for failing to warn patients
of the general risks of prescription drugs, it could be disruptive to
the physician-patient relationship. Id. ¶ 21.
¶24 Thus, we extended the learned intermediary rule to
pharmacists, and we held that under the current regulatory
structure, pharmacists are not strictly liable for failure to warn
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Opinion of the Court
about the general risks associated with FDA-approved prescription
drugs. Id. ¶ 22. However, we explained that pharmacists “may still
be liable for claims of professional malpractice or negligence.” Id.
¶ 34.
¶25 Beyond that, we did not address whether the learned
intermediary rule would apply to a negligence claim premised on
a failure to warn. Although Schaerrer also involved a negligence
claim, we resolved it on causation grounds. Id. ¶ 36. But in doing
so, we remarked: “Although pharmacists can be held liable for
negligence if there is a breach of duty, pharmacists are protected
from claims if they fill a prescription precisely as directed by the
manufacturer or physician.” Id. ¶ 35.
¶26 It is this statement that Walgreens relies on to argue that,
because the pharmacist filled Jensen’s prescription exactly as Dr.
Cosgrave had written it, Schaerrer governs this case and mandates
summary judgment in its favor. But Schaerrer does not answer the
question here. This statement was “unnecessary” to our resolution
of the negligence claim in that case, making it dicta. Mulligan v.
Alum Rock Riverside, LLC, 2024 UT 22, ¶ 48,
556 P.3d 21 (cleaned up);
accord State v. Robertson,
2017 UT 27, ¶¶ 26–27,
438 P.3d 491. Also,
we had not yet addressed whether to extend the learned
intermediary rule to negligent failure-to-warn cases. So, in making
this statement, we were not purporting to comprehensively
describe the scope of the learned intermediary rule in the
negligence context. See Downing v. Hyland Pharmacy,
2008 UT 65,
¶ 9,
194 P.3d 944 (explaining that in Schaerrer, “we were not
required . . . to address the interface between [a pharmacist’s duty
to consumers] and the learned intermediary rule”). And most
importantly, in a subsequent case, Downing v. Hyland Pharmacy, we
explicitly rejected the argument Walgreens makes here. Id. ¶ 6
(“[T]he trial judge apparently premised his holding on the legal
conclusion that under no set of circumstances could [the pharmacy]
be held liable for negligence in filling prescriptions issued by a
physician under Schaerrer. We disagree.”).
¶27 Downing is the closest we have come to answering the
question before us now. But we stopped just short of it because it
was not necessary to the resolution of that case. The plaintiff in
Downing sued a pharmacy for negligently filling his prescription
for a drug that had been withdrawn from the market by the FDA
and the manufacturer and for failing to warn him of the drug’s
status. Id. ¶ 3. We observed that “many courts examining the
learned intermediary rule” had applied it to negligence claims
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Opinion of the Court
premised on a failure to warn. Id. ¶ 7 (cleaned up). And we agreed
with those courts that “the rule makes sense in negligence as well
as strict liability contexts.” Id. But we explained that our broad
application of the rule to strict liability claims in Schaerrer “does not
mean that we will not limit its application to negligence claims
when the facts and public policy require such limitation.” Id. ¶ 9.
¶28 And we did limit its application in Downing. We
concluded that because the pharmacist dispensed a drug that was
“not authorized for sale by the FDA,” the learned intermediary rule
did not apply to shield the pharmacist from liability. Id. ¶ 10.
Rather, the pharmacist owed the usual duty of reasonable care to
the consumer. Id. ¶ 13.
¶29 However, our decision in Downing did not attempt to
comprehensively establish the parameters of the learned
intermediary rule in negligence claims. Id. ¶ 9 (noting that we were
not “address[ing] the interface” between a pharmacist’s duty to
consumers and the learned intermediary rule). We did observe,
though, that “[t]he majority of recent decisions discussing the rule”
in other states had recognized that the rule’s protections extended
“only to warnings about general side effects of the drugs in
question, . . . not to specific problems known to the pharmacist such
as prescriptions for excessively dangerous amounts of the drug or
for drugs contraindicated by information about a patient.” Id. ¶ 8.
¶30 The district court and the parties have interpreted this
statement as creating two categorical limitations on the rule where
a pharmacist dispenses medication that is prescribed in an
“excessively dangerous amount” or is “contraindicated” for a
particular patient. But that was not our intent. In the context of
explaining that we may limit the learned intermediary rule in
negligence claims more so than in strict liability claims, we were
simply observing some of the limitations placed by other courts.
And we left for another day the question of the precise scope of the
rule in Utah.
¶31 We take up that question now. In this analysis, it is
important to understand that, despite its moniker, the learned
intermediary rule functions more like an exception to a rule. In
negligence cases, it is the general rule that a pharmacist has a “duty
to possess and exercise the reasonable degree of skill, care, and
knowledge that would be exercised by a reasonably prudent
pharmacist in the same situation.” Schaerrer, 2003 UT 43, ¶ 35
(cleaned up). Where it applies, the learned intermediary rule
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Opinion of the Court
creates an exception to this generally recognized duty. The task for
us here is to determine the parameters of this exception in
negligence claims.
¶32 Most state courts to have considered this issue have placed
limits on the learned intermediary rule in negligence cases. The
Supreme Court of Illinois confronted similar facts in Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002), and it concluded that
the rationale for the learned intermediary rule does not hold in
situations where a pharmacist is aware of a patient-specific risk
posed by a prescribed drug.
Id. at 1129. In that case, a customer with
an aspirin allergy asked Walmart to fill a prescription for a drug
that was contraindicated for people with aspirin allergies.
Id. at
1121. Walmart knew about the patient’s allergy, but it filled the
prescription without warning of the contraindication.
Id. at 1121–
22. Walmart argued that the learned intermediary rule eliminated
any duty to warn the customer about the drug’s risks to the patient.
Id. at 1124.
¶33 The Happel court disagreed and reasoned that “this case is
outside the purview of the learned intermediary doctrine” because
the “reasons for not imposing a duty to warn on pharmacists do
not apply in the instant case.” Id. at 1127–28. The Happel court noted
that one of the primary purposes behind the rule was to prevent
pharmacists from interfering with the doctor-patient relationship.
Id. at 1127; see also Schaerrer,
2003 UT 43, ¶¶ 21–22 (expounding
upon the same concern). But when a pharmacist already has
knowledge of a patient-specific risk, “imposing a duty to warn . . .
would not require the pharmacist to learn the customer’s condition
and monitor his drug usage.” Happel,
766 N.E.2d at 1128 (cleaned
up). Nor would it force a pharmacist to “intrude[] . . . into the
doctor-patient relationship [or] practice medicine without a
license.”
Id. (cleaned up). Concluding that the public policy
considerations for adopting the learned intermediary rule were not
present when a pharmacist is aware of a patient-specific risk, the
court held that Walmart had a “duty to warn.”
Id. at 1130. Many
other courts have reached a similar conclusion when the
pharmacist is aware of a patient-specific risk.3
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3 See, e.g., Klasch v. Walgreen Co.,
264 P.3d 1155, 1156 (Nev. 2011)
(en banc) (“We conclude that when a pharmacist has knowledge of
a customer-specific risk with respect to a prescribed medication,
(continued . . .)
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¶34 Other courts have also concluded that the policy rationale
behind the learned intermediary rule is not present when a
prescription contains an obvious error that a pharmacist of
reasonable competence would be expected to notice.4 Courts have
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the pharmacist has a duty to exercise reasonable care in warning
the customer or notifying the prescribing doctor of this risk.”);
Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So. 2d 658, 665
(Miss. 2002) (en banc) (“An exception to the learned intermediary
doctrine, as applied to pharmacists, exists where it was undisputed
that a plaintiff had informed the pharmacy of health problems
which contraindicated the use of the drug in question.”); Hand v.
Krakowski,
89 A.D.2d 650, 651 (N.Y. App. Div. 1982) (“Such conduct,
[issuing drugs contraindicated with the use of alcohol to a patient
who the pharmacy knew was an alcoholic] could be found to
constitute a breach of a druggist’s duty of ordinary care in that it
knowingly ignores the danger and consequences of ingestion by an
alcoholic of prescription drugs commonly recognized to be
contraindicated.”); Pittman v. Upjohn Co.,
890 S.W.2d 425, 434
(Tenn. 1994) (“The Court of Appeals . . . properly rejected the
defense of learned intermediary where the pharmacist failed to
warn a customer of the danger of one prescription drug interacting
with another drug prescribed by the same physician.”); Ferguson v.
Williams,
374 S.E.2d 438, 440 (N.C. Ct. App. 1988) (“While a
pharmacist has no duty to advise absent knowledge of the
circumstances . . . once a pharmacist is alerted to the specific facts
and he or she undertakes to advise a customer, the pharmacist then
has a duty to advise correctly.”); cf. Cottam v. CVS Pharmacy,
764
N.E.2d 814, 821 (Mass. 2002) (“[W]here the pharmacist has no
specific knowledge of an increased danger to a particular customer,
the pharmacist has no duty to warn that customer of potential side
effects.”).
4 See, e.g., McKee v. Am. Home Prods., Corp.,
782 P.2d 1045, 1053
(Wash. 1989) (en banc) (“We agree pharmacists should have a duty
to be alert for patent errors in a prescription, for example: obvious
lethal dosages, inadequacies in the instructions, known
contraindications, or incompatible prescriptions, and to take
corrective measures.” (cleaned up)); Walls v. Alpharma USPD, Inc.,
887 So. 2d 881, 886 (Ala. 2004) (“The learned-intermediary doctrine
forecloses any duty upon a pharmacist filling a physician’s
prescription, valid and regular on its face, to warn the physician’s
(continued . . .)
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observed that, “pharmacists have the training and skills to
recognize when a prescription dose is outside a normal range.”
Horner v. Spalitto, 1 S.W.3d 519, 523 (Mo. Ct. App. 1999) (cleaned
up). And so imposing a “duty to be alert for patent errors in a
prescription, [like] obvious lethal dosages, inadequacies in the
instructions, known contraindications, or incompatible
prescriptions” would not require a pharmacist to fill the role of a
physician. McKee v. Am. Home Prods., Corp.,
782 P.2d 1045, 1053
(Wash. 1989) (en banc) (cleaned up).
¶35 We agree that the rationale for the learned intermediary
rule does not extend to circumstances where a pharmacist has
information about a patient-specific risk or observes an obvious
error on the face of the prescription. Thus, while the learned
intermediary rule exempts pharmacists from the duty to warn
__________________________________________________________
patient, the pharmacist’s customer, or any other ultimate consumer
of the risks or potential side effects of the prescribed medication
. . . .” (emphasis added)); Nichols v. Cent. Merch., Inc., 817 P.2d 1131,
1133 (Kan. Ct. App. 1991) (concluding a pharmacist was protected
under the learned intermediary rule because, among other things,
“[t]here were no clear errors on the face of the prescription”);
Gassen v. E. Jefferson Gen. Hosp.,
628 So. 2d 256, 259 (La. Ct. App.
1993) (“We hold a pharmacist has a limited duty to inquire or verify
from the prescribing physician clear errors or mistakes in the
prescription.”); Moore,
825 So. 2d at 665 (“Another exception [to the
learned intermediary rule] exists where pharmacists fill
prescriptions in quantities inconsistent with the recommended
dosage guidelines.”); Horner v. Spalitto,
1 S.W.3d 519, 523 (Mo. Ct.
App. 1999) (“Pharmacists have the training and skills to recognize
when a prescription dose is outside a normal range. They are in the
best position to contact the prescribing physician, to alert the
physician about the dose and any contraindications relating to
other prescriptions the customer may be taking as identified by the
pharmacy records, and to verify that the physician intended such a
dose for a particular patient. We do not perceive that this type of
risk management unduly interferes with the physician-patient
relationship. Instead, it should increase the overall quality of health
care.” (cleaned up)); Stebbins v. Concord Wrigley Drugs, Inc.,
416
N.W.2d 381, 387–88 (Mich. Ct. App. 1987) (“We hold that a
pharmacist has no duty to warn the patient of possible side effects
of a prescribed medication where the prescription is proper on its
face . . . .”).
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patients of the general risks of FDA-approved drugs, outside of
that, it does not create an exception to the general rule that a
pharmacist owes a duty of care to patients.
¶36 But we emphasize that where the learned intermediary
rule does not apply, it does not necessarily follow that the
pharmacist is liable for negligence. It just means that the pharmacist
maintains the “generally recognized duty to possess and exercise
the reasonable degree of skill, care, and knowledge that would be
exercised by a reasonably prudent pharmacist in the same
situation.” Schaerrer, 2003 UT 43, ¶ 35 (cleaned up). And a plaintiff
would need to prove the other elements of negligence before the
pharmacist would incur liability.5
¶37 In this case, the district court assumed in its summary
judgment ruling that the learned intermediary rule shielded a
pharmacist from liability, except in two situations: (1) where a
pharmacist fills a prescription for a drug in an excessively
dangerous amount, or (2) where the drug is contraindicated for the
patient. On this basis, the court denied summary judgment to
Walgreens because it concluded the Plaintiffs had raised “material
factual disputes about specific problems known to the pharmacist
about whether [c]lonazepam was prescribed in an excessively
dangerous amount and was contraindicated for [Jensen] based on
information known to the pharmacist.” The court’s ultimate denial
of summary judgment was correct. But, as we have clarified, the
learned intermediary rule does not apply to any claims alleging
patient-specific negligence and is not limited to the two examples
we gave in Downing. See supra ¶ 35.
__________________________________________________________
5 We note that some courts identify specific conduct that
pharmacists should take in these scenarios. See, e.g., Gassen, 628 So.
2d at 259 (“We hold a pharmacist has a limited duty to inquire or
verify from the prescribing physician clear errors or mistakes in the
prescription.” (emphasis added)); Klasch,
264 P.3d at 1156 (“We
conclude that when a pharmacist has knowledge of a customer-specific risk with respect to a prescribed medication, the
pharmacist has a duty to exercise reasonable care in warning the
customer or notifying the prescribing doctor of this risk.” (emphasis
added)). But we conclude these specifics should be left to the
appropriate standard of care. See Downing v. Hyland Pharmacy,
2008
UT 65, ¶¶ 10–12,
194 P.3d 944 (discussing the difference between
duty and standard of care).
13
JENSEN v. WALGREEN CO.
Opinion of the Court
¶38 Here, the Plaintiffs have alleged that Walgreens’
pharmacist was aware of a patient-specific risk. The dangers of
combining clonazepam and oxycodone are well-documented in the
case. And the Plaintiffs presented evidence that Walgreens had
record of both Jensen’s existing oxycodone prescription and his
new clonazepam prescription. Further, Walgreens’ system alerted
the pharmacist to the potential drug interaction by displaying a
warning on the computer, which the pharmacist had to manually
override. Thus, the Plaintiffs provided evidence that the
pharmacist was aware that the prescription posed serious risks that
were specific to Jensen. The learned intermediary rule does not
apply in these circumstances.
¶39 Accordingly, Walgreens was not entitled to summary
judgment based on its argument that it owed no duty to Jensen as
a matter of law. Rather, the pharmacist maintained the “generally
recognized duty to possess and exercise the reasonable degree of
skill, care, and knowledge that would be exercised by a reasonably
prudent pharmacist in the same situation.” Schaerrer, 2003 UT 43,
¶ 35 (cleaned up). With that clarification, we affirm the district
court’s ruling.
II. CAUSATION
¶40 We now turn to Walgreens’ alternative argument that,
even if the learned intermediary rule does not bar the Plaintiffs’
negligence claim, the district court should have granted summary
judgment in its favor because the Plaintiffs cannot show causation
as a matter of law. Walgreens observes that Jensen’s prescribing
physician, Dr. Cosgrave, testified during discovery that even if
Walgreens had called him to double-check the prescription, he
would have said to fill it. Consequently, it asserts that even
assuming the pharmacist had warned Jensen and called Dr.
Cosgrave to inquire about the prescription, Jensen would have still
taken the clonazepam because Dr. Cosgrave would have confirmed
the prescription.
¶41 We conclude that there is a material dispute of fact as to
whether Jensen would have still taken the clonazepam under these
hypothetical circumstances. In considering a summary judgment
motion, the district court is to review the evidence in the light most
favorable to the nonmoving party. Downing v. Hyland Pharmacy,
2008 UT 65, ¶ 4,
194 P.3d 944 (citing Surety Underwriters v. E & C
Trucking, Inc.,
2000 UT 71, ¶ 15,
10 P.3d 338). And the Plaintiffs
presented evidence that Jensen was specifically concerned about
14
Cite as: 2025 UT 41
Opinion of the Court
potential side effects and that if he had been warned the
clonazepam was dangerous, he would not have taken it.
Accordingly, we agree with the district court that there is a genuine
dispute of material fact with respect to whether Jensen would have
taken the clonazepam if the pharmacist would have warned him of
the risk of doing so.
¶42 Thus, we decline to reverse the district court’s summary
judgment order on this basis.
CONCLUSION
¶43 In negligence claims, the learned intermediary rule
exempts pharmacists from the duty to warn patients of the general
risks and side effects of FDA-approved drugs. But the rule does not
alter a pharmacist’s general duty of care to a patient when the
pharmacist has knowledge of a patient-specific risk with respect to
a prescribed medication, when the drug is not approved by the
FDA, or when the prescription has an error apparent on its face.
Because this case involves a patient-specific risk, it falls outside of
the learned intermediary rule. We also reject Walgreens’ alternative
basis for reversal. Accordingly, we affirm and remand the case for
further proceedings in the district court.
15
