A Little Rain In The Desert


Several years ago (just writing that makes us feel tired) we put up a mournful post entitled In The Deserts Of New Mexico, in which we expressed our disappointment that a federal judge – any federal judge – would ignore no fewer than four intermediate appellate decisions from the New Mexico Court of Appeals and predict that New Mexico law would not adopt the learned intermediary rule.

But that’s precisely what the court in Rimbert v. Eli Lilly, 577 F. Supp.2d 1174, 1214-24 (D.N.M. 2008), did – waving away previously consistent New Mexico precedent. Cf. Serna v. Roche Laboratories, 684 P.2d 1187, 1189 (N.M. App. 1984); Jones v. Minnesota Mining & Manufacturing Co., 669 P.2d 744, 748 (N.M. App. 1983); Perfetti v. McGahn Medical, 662 P.2d 646, 650 (N.M. App. 1983); Richards v. Upjohn Co., 625 P.2d 1192, 1195 (N.M. App. 1980); and Hines v. St. Joseph’s Hospital, 527 P.2d 1075, 1077 (N.M. App. 1974), all adopting the learned intermediary rule. We felt we were in the Land of Disenchantment.

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