Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on Defendant Eli Lilly and Company’s Motion for Summary Judgment on All Claims, filed March 19, 2008 (Doc. 55)(“Motion”). The Court held a hearing on May 16, 2008. The primary issues are: (i) whether the Court should certify to the Supreme Court of New Mexico the legal issue whether New Mexico law recognizes the learned-intermediary doctrine; (ii) whether the Supreme Court of New Mexico would adopt the learned-intermediary doctrine in prescription-drug cases; (iii) whether the 2003 Prozac warnings were inadequate as a matter of law; (iv) whether Defendant Eli Lilly and Company is entitled to summary judgment on Plaintiff Mark Rimbert’s claim for strict liability; (v) whether Eli Lilly is entitled to summary judgment on Mark Rimbert’s claim for negligence per se; (vi) whether Eli Lilly is entitled to summary judgment on Mark Rimbert’s warranty claims; (vii) whether Eli Lilly is entitled to summary judgment on Mark Rimbert’s claim for punitive damages. Because the Court does not believe that the Supreme Court of New Mexico would adopt the learned-intermediary doctrine, and because the Court cannot say that the warnings were adequate as a matter of law, the Court will grant in part and deny in part Eli Lilly’s motion for summary judgment. The Court will grant Eli Lilly summary judgment on Mark Rimbert’s warranty and negligence per se claims, and deny it summary judgment on Mark Rimbert’s remaining claims. FACTUAL BACKGROUND Prozac, an FDA-approved prescription antidepressant that Eli Lilly manufactures, is a selective serotonin reuptake inhibitor (“SSRI”). At the time it was prescribed for Gilbert Rimbert, Prozac was a prescription antidepressant medication that the United States Food and Drug Administration (“FDA”) had approved for use in the treatment of major depressive disorder. See Defendant Eli Lilly and Company’s Memorandum in Support of its Motion for Summary Judgment on all Claims ¶ 2, at 5, filed March 19, 2008 (Doc. 56)(“Memo. in Support”); Exhibit A to Memo, in Support, Declaration of John M. Plewes, II. M.D. at 3 (taken March 11, 2008)(“Plewes Aff.”); Exhibit A to Memo, in Support, Package Insert for Prozac (“Prozac Insert”). Fluoxetine is the generic name for Prozac. See Exhibit C to Memo, in Support, Deposition of Barry Hochstadt, M.D. (taken August 15, 2007) at 23:6-10 (“Ho-chstadt Depo.”). Before 2003, Barry Hochstadt, M.D., Gilbert Rimbert’s primary physician, had read literature regarding whether suicidality could be induced by the use of SSRI medications. See id. at likll-^OiG. Dr. Hochstadt had been aware of the issue of suicidality in connection with SSRI medications for at least fifteen years. See id. at 19:11-20:6; id. at 53:4-9. Before August of 2003, Dr. Hochstadt had also read literature regarding whether violence could be induced by SSRI medications. See id. at 65:20-66:22. Dr. Hochstadt had been aware of the issue of violence in connection with SSRI medications, including Prozac, for at least fifteen years. See id. at 19:11-20:6; id. at 65:20-66:5. Dr. Hochstadt does not warn patients about an alleged risk of violent activity from antidepressant use because he does not believe that there is any data to support the idea that SSRI medications cause increasing episodes of violence. See id. at 66:6-22. In 2003, if Eli Lilly had told him to do so, Dr. Hochstadt would have monitored patients beginning to use Prozac for suicidality. See id. at 105:15-20. On August 18, 2003, Gilbert Rimbert went to see Dr. Hochstadt with increasing despondence and depression related to his wife’s recent request for a divorce. See Hochstadt Depo. at 34:14-35:11. Dr. Ho-chstadt concluded that Gilbert Rimbert was not severely depressed using a Zung depression scale. See id. at 101:12-102:24. Dr. Hochstadt diagnosed Gilbert Rimbert with depression and prescribed a 20 milligram daily dose of fluoxetine. See id. at 40:2-41:4; id. at 54:16-21. At the time that Dr. Hochstadt prescribed Prozac for Gilbert Rimbert, a ten milligram dose of Prozac was available. See Prozac Insert at 1; Complaint ¶ 14, at 5. At the time Dr. Hochstadt prescribed Prozac for Gilbert Rimbert, Prozac Weekly, a weekly dose, was available. See Prozac Insert at 1; Complaint ¶ 15, at 15. Dr. Hochstadt made the decision to prescribe Prozac based on his knowledge and training as a physician. See id. at 123:21-25. When Dr. Hochstadt prescribes any medication, he conducts a risk/benefit analysis. See id. at 23:21-24:2. Dr. Ho-chstadt relied on medical journals, conferences, textbooks, and the “ePoerates” computer program to education himself on prescription drugs. Id. at 27:12-28:5. Dr. Hochstadt does not recall Eli Lilly sales representatives calling on him regarding Prozac at the time he prescribed it for Gilbert Rimbert. See id. at 70:18-71:7. Dr. Hochstadt discussed the risks and benefits of SSRI treatment with Gilbert Rimbert. See Exhibit C to Memo, in Support, Medical Clinic Note (dated August 18, 2003) at 2 (stating “I discussed with him the risks and benefits of treatment using an SSRI. I discussed with him either Prozac or fluoxetine.”). Dr. Hochstadt testified that the implementation of black-box warnings regarding suicide has changed since he treated Gilbert Rimbert, and he could not be sure what he told patients in 2003 about this issue. See id. at 47:17-49:15. Dr. Hochstadt recalled, however, telling Gilbert Rimbert to call his office if he experienced suicidality or worsening depression. See Hochstadt Depo. at 59:16-20; id. at 128:15-129:2. Dr. Hochstadt testified: Q. But you are confident that you would have told him in September of 2003, “If your depression gets worse or if you feel suicidal, you need to call me”? A. I am confident I did that as a routine about that time in my practice career. Hochstadt Depo. at 59:16-20. Dr. Ho-chstadt also testified: Q. And just so that I understand, I thought that your testimony earlier was that in 2003, you would have also counseled patients taking an antidepressant about the risk of sui-cidality? A. My understanding and recollection would be yes, even then. Q. And, in fact, I think you have testified that you would have told Mr. Rimbert at both appointments that he came to see you when he was on Prozac — actually, the initial appointment in August and then the followup in September- — -that if he did develop suicidality, he should call you immediately? A. That would be my recollection. Id. at 128:15-129:2. Dr. Hochstadt further testified: Q. ... You cautioned [patients] because of the concern that their depression could lead to suicide, right? A. Not true. I only would caution, “If you start this medication, there is a potential increased risk for suicidality.” Q. Antidepressant-induced? A. It could be because of medication, it could be because of their illness. I don’t distinguish. I just say, “If you have increasing problems with, you know, depression, suicidal thinking, then call me immediately and stop the medication.” I can’t distinguish why they would feel that way. Q. And you are saying you were saying that in August and September of '03? A. My recollection is that’s true. That’s four years ago. So the answer is yes. Id. at 135:21-136:11. Mark Rimbert contends that Eli Lilly used the mass media to advertise Prozac. See Response ¶ 78, at 7 (citing www. prozac.com). There is no evidence that Gilbert Rimbert saw any advertisement for Prozac. See Memo, in Support, Exhibit D, Deposition of Tracy Rimbert Thiel at 36:3-9 (taken May 22, 2007)(“Thiel Depo.”). Dr. Hochstadt did not dispense Prozac to Gilbert Rimbert. See id. at 10:25-11:8. Gilbert Rimbert did not ask for Prozac by name. See id. at 123:17-20. There is no evidence that Gilbert Rimbert had any Prozac prescription filled at a pharmacy. See Deposition of Grace E. Jackson, M.D. at 97:24-99:3 (taken December 13, 2007)(“Jackson Depo.”). Dr. Hochstadt scheduled a follow-up appointment with Gilbert Rimbert, as it was Dr. Hochstadt’s practice to schedule a three-to-four-week follow-up appointment with patients after he prescribed Prozac. See Hochstadt Depo. at 55:7-17. Gilbert Rimbert did not call Dr. Hochstadt’s office between his August 18, 2003 and September 9, 2003 appointments to report worsening depression or suicidality. See id. at 58:20-59:20. At the time that Dr. Hochstadt prescribed Prozac for Gilbert Rimbert, the Prozac package insert and the Physicians’ Desk Reference (“PDR”) contained the following statement in the “Precautions” section: Suicide — The possibility of a suicide attempt is inherent in depression and may persist until significant remission occurs. Close supervision of high risk patients should accompany initial drug therapy. Prescriptions for Prozac should be written for the smallest quantity of capsules consistent with good patient management, in order to reduce the risk of overdose. Prozac Insert at 2; Exhibit B to Memo, in Support, PDR at 5 (emphasis in original). Mark Rimbert objects that the reference to suicide in the “Precautions” section of the labeling in 2003 was in regard to suicide as a consequence of depression. Response at 3. The “Adverse Reactions” sections of the Prozac Insert and the PDR, however, also reference suicide attempt, akathisia, and hostility. Prozac Insert at 4; PDR at 7. The “Postintroduction Reports” section of the Prozac Insert and the PDR also listed suicidal ideation and violent behaviors as being included in post-marketing reports of adverse events temporally associated with Prozac. Prozac Insert at 4; PDR at 7. At the time of his deposition, Dr. Ho-chstadt was aware that a black-box warning identifying a possible risk of increased suicidality in pediatric patients and young adults treated with SSRIs was added to the Prozac labeling and Prozac Insert sometime in 2004. See Hochstadt Depo. at 16:9-15, id. at 20:11-15. The federal regulations required and require a warning in the “Warnings” section about the risk of Prozac-induced suicidality. Response, Exhibit 3, 2003 Prozac label at 9; 21 C.F.R. §§ 201.57(e)(June 30, 2006) and 314.70(c)(2)(i). Mark Rimbert asserts that the “passing references to akathisia or sui-cidality or hostility or violence in other sections of the labeling that are not ‘warnings’ are irrelevant.” Response at 3. Mark Rimbert contends that the risk of akathisia, mania, psychosis, violence, activation, and/or suicide is dose dependent. See Response ¶ 44, at 3-4; Exhibit 4, R. Perlis et. al, Treatment-Associated Suicidal Ideation and Adverse Effects in an Open, Multicenter Trial of Fluoxetine for Major Depressive Episodes, 76 Psychotherapy and Psychosomatics 40-46 (2007)(“Beasley article”); Defendant Eli Lilly and Company’s Answer to Plaintiffs Complaint ¶ 13 at 5, filed November 20, 2006 (“Lilly admits that some, but not all, adverse events associated with the use of Prozac appear to be dose related.”). Mark Rimbert asserts that, “[i]n other words, if one is already sensitive to Prozac-induced side effects, for whatever reason, increased dosing exacerbates the issue.” Response at ¶ 44, at 4. Mark Rimbert contends that the FDA agrees. See Response ¶ 44, at 4; Prozac Insert at 10 (stating that “[a]ll patients being treated with antidepressants for any indication should be monitored appropriately and observed closely for clinical worsening, suicidality, and unusual changes in behavior, especially during the initial few months of a course of drug therapy, or at times of dose changes, either increases or decreases.”). There is a 2008 black-box warning that contains the words of caution for patients of “all ages.” Response, Exhibit 2, Prozac Insert at 1, available at: www.prozac.com (“2008 Prozac Insert”). As of August of 2003, however, when Dr. Hochstadt prescribed Prozac for Gilbert Rimbert, there was no black-box warning. See Complaint ¶¶ 2, 32-36, 48(c), 51, 55, at 1, 11-12, 15, 16; Plewes Aff. at 1-2, Prozac Insert at 6. Mark Rimbert contends that, in 2003, none of the inserts warned about Prozac-related “iatrogenic violence.” Response at 2-3. Dr. Hochstadt has read, and is familiar with, the 2007 Prozac Insert which includes the black-box warning. See Ho-chstadt Depo. at 17:11-18:4. Dr. Ho-chstadt is confident that, even with the knowledge that a black-box warning has been added to SSRI medication, he would have prescribed Prozac for Gilbert Rim-bert in 2003. See id. at 67:19-23. Dr. Hochstadt testified that, now that the black-box warnings regarding suicide have been implemented, he warns patients about the risk of antidepressant-associated suieidality. See id. at 49:15-25. On September 8, 2003, Gilbert went to Dr. Tamara Goodman at the Veterans’ Administration (‘VA”) for refills of medications. See Exhibit F to Memo, in Support, Progress Note at 2 (dated September 8, 2003). Dr. Goodman’s Progress Note does not address Gilbert Rimbert’s depression or use of Prozac. See id. The Progress Note does not identify any side effects associated with Gilbert Rimbert’s use of Prozac. See id. Gilbert Rimbert went to Dr. Hochstadt for follow up on September 9, 2003. See Hochstadt Depo. at 56:10-18. Gilbert Rimbert told Dr. Hochstadt that his use of Prozac “t[ook] the edge off,” but that he had not experienced a dramatic improvement in his depression. Id. at 57:3-10. Gilbert Rimbert reported no side effects from Prozac to Dr. Hochstadt on September 9, 2003 nor at any other time. See id. at 56:19-57:4. On September 9, 2003, Dr. Hochstadt increased Gilbert Rimbert’s daily dose of Pi-ozac from 20 milligrams to 40 milligrams. See id. at 64:4-9. Mark Rimbert contends that doubling the dose on September 9, 2003 increased Gilbert Rimbert’s risk of “potentially lethal side effects.” Response at ¶ 44, at 4. Mark Rimbert contends that “[t]he Rimberts’ deaths on September 25, 2003, was, thus, in the very time period that one would, according to peer-reviewed articles published by Lilly authors and the FDA, expect for a Prozac-induced event.” Response at ¶44, at 4. At the September 9, 2003 follow-up appointment, Dr. Hochstadt again advised Gilbert to contact the office immediately if he experienced suieidality or worsening depression. See id. at 62:9-22. Dr. Ho-chstadt testified: Q. It appears in this note that Mr. Rimbert’s next visit after this September 9th, 2003, visit was scheduled for November; is that accurate? A. That is my understanding, looking at the medical record, that I stated, “Prior to the next visit in November.” Q. But then it goes on to say, “The patient will return sooner if he is having difficulty or problems”? A. That is correct. Q. Is there an indication that you would have told him, “If you start having any type of further problems or difficulties, you need to come back and see me”? A. That’s correct. Id. at 62:9-22. In 2003, and currently, it is Dr. Hochstadt’s practice to follow up with a patient one to two months after an increase in dose. See id. at 55:18-56:1. Dr. Hochstadt had no further contact with Gilbert Rimbert after September 9, 2003. See id. at 56:12-15. Dr. Hochstadt still considers his decision to treat Gilbert Rim-bert with Prozac appropriate, both in initially prescribing Prozac and increasing the dose of Prozac. See id. at 67:11-18. On September 25, 2003, Gilbert and Olivia Rimbert were found dead in their home. See Complaint ¶ 44, at 14; Exhibit H to Memo, in Support, Supplementary Offense Report (dated October 24, 2003)(“Police Report”); Deposition of Mark Rimbert (taken May 23, 2007) at 157:1-158:23 (“M. Rimbert Depo.”). Olivia Rimbert and the family dog were covered with blankets. See M. Rimbert Depo. at 158:8-10; id. at 161:4-8; Police Report at 4. Gilbert Rimbert was seated at the kitchen table. See M. Rimbert Depo. at 157:7-165:22. On the table in front of Gilbert Rimbert were a note, a list of assets, bank account numbers, and the wills of Gilbert and Olivia Rimbert. See id. at 163:10— 165:14. The note, in Gilbert Rimbert’s handwriting, stated, in its entirety: I know you kids will never be able to forgive me! I love your mother more then life! Will be together now for eternity Love Dad M. Rimbert Depo., Ex. 3. Investigators concluded that Gilbert Rimbert shot Olivia Rimbert multiple times, causing her death. See Police Report at 9; Exhibit I to Memo, in Support, Death Certificate for Olivia A. Rimbert (dated September 25, 2003)(stating that the cause of death were gunshot wounds of trunk and extremities). The medical examiner concluded that Gilbert Rimbert died from a self-inflicted gunshot wound to the head. See Exhibit I to Memo, in Support, Death Certificate for Gilbert John Rimbert (dated September 25, 2003)(stat-ing that the cause of death was gunshot wound of head). A bottle marked Prozac was on the table where Gilbert Rimbert was seated. See M. Rimbert Depo. at 28:23-29:5. The bottle did not have a pharmacy label, nor did it state Gilbert Rimbert’s name or other identifying information. See Exhibit J to Memo, in Support, Deposition of Yvonne Rimbert at 14:23-16:14 (taken May 23, 2007)(“Y. Rimbert Depo.”). Family members found an unfilled prescription for Prozac written for Gilbert Rimbert when they cleaned the home after his death. See id. at 15:15-17:4. The presence of fluoxetine and its psychoactive metabolite, norfluoxetine, in Gilbert Rimbert’s blood was confirmed by toxicological examination. See Exhibit 5 to Response, National Medical Services, Inc. Toxicology Report (dated February 26, 2004) at 1 (“Toxicology Report”). The homicide/suicide in this case occurred sixteen days after Gilbert’s dose of Prozac was doubled. See Memo, in Support at ¶¶ 32, 39, at 10-11. Mark Rim-bert alleges that his father, Gilbert Rim-bert, shot and killed Olivia Rimbert, his mother, as a result of ingesting Prozac. See Complaint ¶¶ 44-46, at 14-15, filed September 18, 2006 (Doc. l)(“Complaint.”). In the fall of 2004, the FDA decided that, in addition to the black-box warning on the label or the package insert for physicians, that patients needed to be warned directly, via “Patient Medication Guides” about the risks at issue in this lawsuit. Response at 5; Exhibit 6 to Response, FDA Public Health Advisory at 1 (dated October 15, 2004), available at: http://Vww.fda.gov/cder/drug/anti depressants/SSRIPHA200410.htm; Exhibit 7, 2008 Patient Medication Guide (“Patient Medication Guide”). In May of 2006, David N. Juurlink, M.D., and others, published an article entitled The Risk of Suicide with Selective Serotonin Reuptake Inhibitors in the Elderly. See Exhibit 9 to Response, D. Ju-urlink et al., The Risk of Suicide with Selective Serotonin Reuptake Inhibitors in the Elderly, 163:5 Am. J. Psychiatry 813-21 (2006)(“Juurlink article”). The FDA cited to this article in a Memorandum it issued in 2006. See Exhibit 10 to Response, Memorandum from Thomas P. Laughren, M.D., Director, Division of Psychiatry Products, to Members of the Psychopharmacologic Drugs Advisory Committee at 8 (dated November 16, 2006)(citing Juurlink article). The authors of the Juurlink article found a fivefold increase of violence in the first four weeks of treatment, and explained that this increase was not incongruent with a protective effect for patients who have a therapeutic response to the drug over a long period of time. See Juurlink article at 1. In December of 2006, Dr. Charles Beasley, a physician that Eli Lilly employed, published a peer-reviewed article that he co-authored with Roy H. Perlis. See Beasley article; Exhibit 8 to Response, Deposition of Charles Beasley, M.D. at 13:2-16:45 (taken June 27, 2007)(“Beasley Depo.”) in Ebel v. Eli Lilly and Co., No. l:04-cv-00194 (S.D.Tex.2007). In-house Eli Lilly physicians and scientists reviewed the Beasley article, and Eli Lilly ultimately approved it for publication. See Beasley Depo. at 13:2-18:13. Dr. Beasley’s article discusses a “small subset” of patients who exhibit the emergence or worsening of suicidal ideas or behavior upon initiation of Prozac therapy. Beasley article at 45 (stating that “[e]ven interventions which help the majority of patients may be associated with worsening in a small subset.”). The article states: Consistent with a previous analysis of suicidal behavior, the majority of new [suicidal ideation] emerged within the first 4 weeks, with the greatest incident in the first week. This result suggests that the initial 4-week treatment 'period is one where vigilance is particularly important. On the other hand, some additional [suicidal ideation] emerged later in the study, indicating that individuals remain vulnerable to the emergence of [suicidal ideation] after the initial month. Id. at 44. The Beasley article also states “[i]t is thus impossible to establish a specific association between fluoxetine and treatment-emergent adverse events or between fluoxetine and treatment-emergent [suicidal ideation] — the observed events could also represent nonspecific (placebo-like) effects or simply natural fluctuation in depression itself.” Id. at 45. PROCEDURAL BACKGROUND Mark Rimbert has disclosed one retained expert, Grace E. Jackson, M.D. See Memo, in Support, Plaintiffs Expert Disclosure at 1, filed March 19, 2008 (Doc. 56-12)(“Plaintiffs Expert Disclosure”). Mark Rimbert disclosed Dr. Jackson as an expert on “general and specific causation as well as Eli Lilly’s failure to warn and/or appropriately test fluoxetine.” Id. at 1. In her report, Dr. Jackson opined: Had Lilly provided an adequate warning about the risks of Prozac to Gilbert Rim-bert, his family and his physicians; had Lilly provided an adequate warning about the necessity of vigilant monitoring (particularly when changing dose, or initiating and terminating drug therapy); and had Lilly promptly communicated the facts about the likelihood of treatment-emergent suicidality and the early worsening of depression, it is quite possible that the violent deaths of Gilbert Rimbert, his wife, and his dog could have been avoided. Exhibit G to Defendant Eli Lilly and Company’s Memorandum in Support of its Motion to Exclude Expert Testimony of Dr. Grace Jackson, filed March 20, 2008 (Doc. 59), Report of Grace E. Jackson, M.D. at 52 (dated November 1, 2007), filed March 20, 2008 (Docs. 63-9 and 63-10)(“Jackson Report”). Eli Lilly points out that Dr. Jackson’s report does not include any opinion or claim that Prozac was defectively designed. See Memo, in Support ¶ 55, at 13. Eli Lilly also notes that Dr. Jackson’s report does not include any opinion or claim that the Prozac Gilbert Rimbert allegedly ingested was defectively manufactured. See id. ¶ 56, at 13. Dr. Jackson testified that she is not an expert on prescription-drug warnings. See Jackson Depo. at 204:15-23. Dr. Jackson testified that she is not an expert on prescription-drug marketing. See id. at 210:22-24. Dr. Jackson testified that she is not an expert on FDA regulations relating to product labeling, nor has she read the FDA regulations that govern labeling. See id. at 203:17-20, id. at 204:11-14. Dr. Jackson did not propose an alternative warning for Prozac. See id. at 204:15-23. Dr. Jackson testified that she did not “feel qualified,” based on her training or experience, to draft a warning for Prozac. Id. at 204:20-23. Mark Rimbert contends that “Dr. Jackson does not have to be a regulatory expert or an expert in drafting warnings to know what kind of information Lilly should have included in a warning or how the lack of such a warning contributed to Plaintiffs injuries.” Response at 5. Mark Rimbert contends that Dr. Jackson’s “credentials as a practicing psychiatrist and psychoactive medication researcher, licensed to prescribe medications of this nature, are sufficient.” Id. Dr. Jackson acknowledged that completed suicide is a risk factor of major depressive disorder independent of Prozac. See Jackson Depo. at 100-22-101:9. She testified: Q. And you, of course, would agree that suicidality — in fact, completed suicide — is a risk of major depressive disorder? A. Correct. Q. In fact, it’s one of the diagnosis criteria of major depressive disorder, suicidality, isn’t it? A. It is one of the possible symptoms of major depressive disorder. Q. And — and it’s — and it’s a — and it’s a possible symptom and a possible outcome of major depressive disorder, totally independent of taking Prozac, right? A. Correct. Id. at 100:22-101:9. Dr. Jackson could not eliminate alternative causes of the deaths of Gilbert and Olivia Rimbert. See id. at 148:22-149:3; id. at 149:12-22. Mark Rimbert contends that, “[bjecause suicide is multi factorial, it is not necessary for an expert to ‘eliminate’ alternative contributing factors that ‘possibly’ contributed to a person’s death. The question is whether or not one of the proximate causes is, more likely than not, the Prozac.” Response at 5. Dr. Jackson also testified that, to bring about the death of his dog, his wife, and ultimately himself, Gilbert Rimbert had to engage in eleven deliberative acts. See Jackson Depo. at 129:17-135:1. Dr. Jackson acknowledged that there was no evidence on the record that Gilbert Rimbert received any communication from Eli Lilly before being proscribed Prozac. See id. at 110:10-111:7. Dr. Jackson also acknowledged that there was no evidence that Gilbert Rimbert requested Dr. Hochstadt proscribe Prozac for him. See id. at 110:22-111:1. Dr. Jackson testified that she did not know if a single isomer version of Prozac would qualify as a safe and effective treatment for major depressive disorder. See id. at 296:15-297:2; Complaint ¶¶ 18-22, at 6-7. Eli Lilly moved for summary judgment on March 19, 2008. See Motion at 1. Eli Lilly contends that each of Mark Rim-bert’s claims — negligence, negligence per se, strict liability, and breach of warranty — fails for want of proof and as a matter of law, and that summary judgment in Eli Lilly’s favor is appropriate. See Complaint ¶¶ 2, 44 at 1, 14. Eli Lilly contends that the Court should dismiss each of Mark Rimbert’s claims with prejudice. See id. At the June 27, 2008 hearing, Eli Lilly argued that the learned-intermediary cases have withstood the test of time, see Transcript of Hearing at 26:21-23(See), filed June 27, 2008 (Doc. 103)(“Tr.”), and that the learned-intermediary doctrine is the law in New Mexico. See id. at 12:17-20(See). Eli Lilly contended that three New Mexico cases have adopted the learned-intermediary doctrine: Serna v. Roche Labs., 101 N.M. 522, 524, 684 P.2d 1187, 1189 (Ct.App.1984), Perfetti v. McGhan Med., 99 N.M. 645, 662 P.2d 646, 651 (Ct.App.1983), and Hines v. St. Joseph’s Hosp., 86 N.M. 763, 764, 527 P.2d 1075, 1076 (Ct.App.1974). See Tr. at 6:9-22 (Court & See). Eli Lilly stated that State ex rel. Johnson and Johnson Corp. v. Karl, 220 W.Va. 463, 647 S.E.2d 899 (2007), was the only case of which it was aware that completely rejected the learned-intermediary doctrine. See Tr. at 7:12-18 (Court & See). Eli Lilly opposed certification to the Supreme Court of New Mexico the question whether the Supreme Court of New Mexico would adopt the learned-intermediary doctrine. Eli Lilly argued that, for a question to be certified to the Supreme Court of New Mexico, it must be a novel or unsettled issue, and that the learned-intermediary doctrine is not a novel or unsettled issue under New Mexico law. See id. at 70:18-271:1-6 (See & Court). Eli Lilly also contended that the warnings of suicidal ideation, attempted suicide, violent behaviors, akathisia, delusions, psychosis, and agitation were all contained in the 2003 Prozac insert and thus the insert should be considered adequate as a matter of law. See id. at ll:19-24(See). Eli Lilly asserted that Mark Rimbert has made no showing that “a different warning would affect the outcome in the case.” Id. at 19:21-23(See). Eli Lilly argued that Mark Rimbert’s case fails for failure to show proximate cause because there is no showing that Dr. Hochstadt would have done anything differently. See id. at 20:24-21:l-7(See). Eli Lilly maintained that there is no evidence that Gilbert Rimbert was affected by direct-to-consumer advertising or internet advertising. See id. at 23:14-21(See). Eli Lilly further asserts that Mark Rim-bert’s claim fails because the FDA states that there is no increased risk of suicide for people over the age of sixty-five, Gilbert Rimbert’s age, and yet Mark Rim-bert’s position is that Eli Lilly violated 21 C.F.R. § 201.57(e) by not stating that Prozac can cause suicidality. See id. at 31:5-6(See); id. at 32:21-25(See). Mark Rimbert asserted that judges have created the learned-intermediary doctrine as a matter of common law, and that it has no support in the Restatement (Second) of Torts. See id. at 39:7-12 (Vickery). Mark Rimbert contended that the first codification of the learned-intermediary doctrine was in 1998 in the Restatement (Third) and that the New Mexico cases upon which Eli Lilly relies do not use the term learned-intermediary doctrine. See id. at 39:16-23 (Vickery). Mark Rimbert conceded that no other courts have done what the West Virginia court did in State ex rel. Johnson and Johnson Corp. v. Karl. See Tr. at 47:5-8 (Court & Vickery). Mark Rimbert contended, however, that the Supreme Court of New Mexico would reject the learned-intermediary doctrine because it adopted the strict liability doctrine in 1972 for the following policy reasons: to compensate victims of dangerous products, and to put the legal responsibility on those who can most afford it and do something about dangerous products. See id. at 51:4-16 (Vickery). Mark Rimbert argued that he believed the Supreme Court of New Mexico would adopt the read-and-heed presumption. See id. at 63:6-10 (Vickery). Mark Rimbert argued that, if the Court were to certify a question to the Supreme Court of New Mexico, “then we will have a definitive authoritative answer on a pure question of law.” Id. at 37:20-21 (Vickery). Mark Rimbert noted that, if Gilbert Rimbert were alive today, he would receive a package insert with a black-box warning about aggression and hostility, stating that patients of all ages need to be monitored, and he would receive a medication guide written in plain English focused on the risks of violence and suicide. See id. at 35:15-36:3 (Vickery). On June 3, 2008, Eli Lilly filed a motion seeking leave to file a post-hearing memorandum in support of its motion for summary judgment on all claims. See Defendant Eli Lilly and Company’s Motion for Leave to File Post-Hearing Memorandum in Support of Its Motion for Summary Judgment on All Claims at 1, filed June 3, 2008 (Doc. 100)(“Motion for Leave to File Post-Hearing Memo.”). Attached to Eli Lilly’s motion was its post-hearing memorandum. See Exhibit 1 to Motion for Leave to File PosNHearing Memo., Defendant Eli Lilly and Company’s Post-Hearing Memorandum in Support of its Motion for Summary Judgment on All Claims, filed June 3, 2008 (Doc. 100-2)(“Post>-Hearing Memo.”). In its post-hearing memorandum, Eli Lilly repeats some of the arguments it makes in its motion for summary judgment. See Post-Hearing Memo, at 1-10. Eli Lilly contends that, were the Court to predict that the Supreme Court of New Mexico would not apply the learned-intermediary doctrine, such a ruling “should be applied only prospectively.” Id. at 11. Eli Lilly argues that the factors in Beavers v. Johnson Controls World Services, Inc., 118 N.M. 391, 881 P.2d 1376 (N.M. 1994), would favor a prospective-only application of “any prediction that New Mexico courts would no longer recognize and apply the learned intermediary doctrine.” Post-Hearing Memo, at 11. Eli Lilly also contends that, even if it had a duty to directly warn patients, Mark Rimbert has not come forward with evidence that it owed any duty to provide the warning that he advocates or that such a warning would have prevented the deaths of Gilbert and Olivia Rimbert. See id. at 13. Eli Lilly again opposes certification to the Supreme Court of New Mexico, even after the Court gave a tentative ruling on the issue of the learned-intermediary doctrine. See id. at 1-2 (“Under such circumstances, certification of a question concerning New Mexico’s recognition of the learned intermediary doctrine would not be justified or appropriate under NMRA, Rule 12-607(A)(1).”). On August 18, 2008, Mark Rimbert’s counsel, Mr. Andy Vickery, wrote a letter to the Court, in response to the Court’s Memorandum Opinion and Order granting Defendant Eli Lilly and Company’s Motion for Leave to File Post-Hearing Memorandum in Support of its Motion for Summary Judgment on All Claims, filed August 18, 2008 (Doc. 108). See Letter from Andy Vickery to the Court (dated August 18, 2008)(“August 18, 2008 Letter”). Mr. Vickery indicated that he saw “no reason to further burden the Court with additional briefing.” Id. He noted that the only issue raised by Eli Lilly that he had not addressed was the retroactive/prospective application issue. He stated: “However, even if the Court chose to ignore the New Mexico presumption that its decision should apply retroactively, it would still presumably apply its decision in favor of the litigants in this case.” Id. Mr. Vickery indicated that, unless the Court believed that further briefing or argument from Mark Rimbert or his counsel would be helpful, they would not seek further supplementation and that “accordingly, ... the Motion is ripe for ruling.” Id. LAW REGARDING SUMMARY JUDGMENT Summary judgment is proper and appropriate where the movant demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir.1995)(“Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”)(internal quotations omitted); Thrasher v. B and B Chem. Co., 2 F.3d 995, 996 (10th Cir.1993). Summary judgment is “properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)(quoting Fed.R.Civ.P. 1). The movant bears the initial burden of showing that there is an absence of evidence to support the nonmoving party’s case. See La Casa de Buena Salud v. United States, No. CIV 07-238 JB/RHS, 2008 WL 2323495 at *14 (D.N.M. March 21, 2008)(Browning, J.)(citing Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). Once the mov-ant meets this burden, rule 56(e) requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548. While the party moving for summary judgment has the initial burden of establishing that there is an absence of evidence to support the opposing party’s case and the moving party is entitled to judgment as a matter of law, see id. at 330, 106 S.Ct. 2548, once the moving party meets its burden, the party opposing the motion must come forward with specific facts supported by admissible evidence that demonstrates the presence of a genuine issue for-trial, see Anderson v. Liberty Lobby, Inc., 477 U.S. at 248-249, 106 S.Ct. 2505: Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1266 (10th Cir.1996). When the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[Wjhere the moving party has the burden — the plaintiff on a claim for relief or the defendant on an affirmative defense— his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Paul v. Monts, 906 F.2d 1468, 1474 (10th Cir.1990)(internal quotations omitted). The Tenth Circuit has explained: In cases arising under diversity jurisdiction, the federal court’s task is not to reach its own judgment regarding the substance of the common law, but simply to ascertain and apply the state law.... The federal court must follow the most recent decisions of the state’s highest court... .Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do.... In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state, ... appellate decisions in other states with similar legal principles, ... district court decisions interpreting the law of the state in question, ... and the general weight and trend of authority in the relevant area of law.... Ultimately, however, the Court’s task is to predict what the state supreme court would do. Wade v. Emcasco Ins. Co., 483 F.3d 657, 665-66 (10th Cir.2007) (citations and internal quotation marks omitted and emphasis added). LAW REGARDING CERTIFICATION TO THE SUPREME COURT OF NEW MEXICO N.M.R.A. Rule 12-607 provides: A. Power to answer. (1) The Supreme Court may answer by formal written opinion questions of law certified to it by a court of the United States, an appellate court of another state, a tribe, Canada, a Canadian province or territory, Mexico or a Mexican state if the answer may be determinative of an issue in pending litigation in the certifying court and the question is one for which answer is not provided by a controlling: (a) appellate opinion of the New Mexico Supreme Court or the New Mexico Court of Appeals; or (b) constitutional provision or statute of this state. N.M.R.A. 12-607(A)(1). See, e.g., Walker v. United States, 2007-NMSC-038, ¶ 1, 162 P.3d 882, 47 (answering questions certified by the United States Court of Federal Claims); Campos v. Murray, 2006-NMSC-020, ¶ 2, 139 N.M. 454, 134 P.3d 741, 742 (answering questions certified by United States District Judge Black of the District of New Mexico). Federal courts have the option of determining what a state court would do if confronted with the same issue, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), or of certifying the question to the state appellate court for review, see Allstate v. Stone, 116 N.M. 464, 465, 863 P.2d 1085, 1086 (1993)(“This matter comes before us by way of certification from the United States District Court for the District of New Mexico.”). See Lehman Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974)(“The decision to certify a question to the state supreme court ‘rests in the sound discretion of the federal court.’ ”); Farm Bureau Mut. Ins. Co. v. Jameson, 472 F.Supp.2d 1272, 1280 (D.N.M.2006)(Browning, J.). Pursuant to N.M.S.A.1978, § 39-7-4, the Supreme Court of New Mexico may answer questions that the federal district court certifies to it if they involve propositions of New Mexico law that may be determinative of the matter before the certifying court and there are no controlling precedents from New Mexico appellate courts. See Swink v. Fingado, 115 N.M. 275, 276, 850 P.2d 978, 979 n. 1 (1993); Schlieter v. Carlos, 108 N.M. 507, 508, 775 P.2d 709, 710 (1989). In Stoner v. New York Life Insurance Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940), the Supreme Court of the United States explained that, “in cases where jurisdiction rests on diversity of citizenship, federal courts, under the doctrine of Erie Railroad Co. v. Thompkins ... must follow the decisions of intermediate state courts in the absence of convincing evidence that the highest court of the state would decide differently.” 311 U.S. at 467, 61 S.Ct. 336. “In particular, this is true where the intermediate state court has determined the precise question in issue in an earlier suit between the same parties, and the highest court of the state has refused review.” Id. See Adams-Arapahoe Joint School Dist. No. 28-J v. Continental Ins. Co., 891 F.2d 772, 774 (10th Cir.1989)(“With respect to issues which the Colorado Supreme Court has not addressed, we may consider all available resources, including Colorado appellate court decisions, other state and federal decisions, and the general trend of authority, to determine how the Colorado Supreme Court would construe the law in this case.”). As the Tenth Circuit explained in Wade v. Emcasco Insurance Co., 483 F.3d 657 (10th Cir.2007): In cases arising under diversity jurisdiction, the federal court’s task is not to reach its own judgment regarding the substance of the common law, but simply to ascertain and apply the state law____ The federal court must follow the most recent decisions of the state’s highest court.... Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do.... In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state .... appellate decisions in other states with similar legal principles .... district court decisions interpreting the law of the state in question, ... and the general weight and trend of authority in the relevant area of law----Ultimately, however, the Court’s task is to predict what the state supreme court would do. Our review of the district court’s interpretation of state law is de novo. 483 F.3d at 665-66 (internal citations and quotation marks omitted). NEW MEXICO LAW REGARDING FAILURE-TO-WARN CLAIMS Under New Mexico law, to prevail on a negligence claim, a plaintiff must establish: (i) the existence of a duty owed to the plaintiff; (ii) a breach of such duty; (iii) a causal connection between a defendant’s conduct and the injury to the plaintiff; and (iv) damages resulting from such conduct. See Parker v. E.I. DuPont deNemours and Co., Inc., 121 N.M. 120, 130, 909 P.2d 1, 11 (Ct.App.1995). A plaintiff in a product-liability action must prove every essential element of his claim by a preponderance of the evidence. See N.M.R.A., Civ. UJI 13-304. Proving a fact by a preponderance of the evidence means establishing that something is more likely true than not true. See Santa Fe Pub. Sch. v. Romero, 131 N.M. 383, 37 P.3d 100, 103 (N.M.App.2001). Evenly balanced evidence is not sufficient to meet this burden. See N.M.R.A., Civ. UJI 13-304 (“Evenly balanced evidence is not sufficient.”). Moreover, proximate cause must be shown as a probability, not a possibility. See Alberts v. Schultz, 1999-NMSC-015, ¶ 28, 126 N.M. 807, 975 P.2d 1279, 1286 (stating that “causation must be proved to a probability, but not to a certainty”); Alfonso v. Lund, 783 F.2d 958, 964 (10th Cir.1986)(“Nevertheless, we feel that under New Mexico law, a medical malpractice case is defective if ... the expert testimony indicated that negligence as the proximate cause of the injury was only a possibility, not a probability.”); Buchanan v. Downing, 74 N.M. 423, 426, 394 P.2d 269, 271 (N.M.1964)(“Even at best, the expert testimony indicated that negligence as the proximate cause of this injury was only a possibility, not a probability, and therefore there is no testimony, expert or otherwise, to show the proximate cause of the injury.”). 1. Duty to Warn and the Learned-Intermediary Doctrine. Pursuant to the learned-intermediary doctrine, the prescribing physician acts as a learned intermediary between a prescription drug manufacturer and the ultimate user, and the manufacturer satisfies its duty to warn by providing adequate warnings to the prescribing physician. See, e.g., Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir.1974)(“Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient.”); Hill v. Searle Labs., 884 F.2d 1064, 1070 (8th Cir.1989)(noting that the learned-intermediary doctrine is justified because it is virtually impossible for a manufacturer to directly warn each patient and that imposing a duty on manufacturers to warn patients directly would interfere with the relationship between the doctor and patient). In Wright v. Abbott Laboratories, Inc., 259 F.3d 1226 (10th Cir.2001), the Tenth Circuit affirmed dismissal of failure-to-warn claim pursuant to learned-intermediary doctrine under Kansas law. See 259 F.3d at 1233-34. The Tenth Circuit noted: The learned intermediary doctrine states that once a manufacturer warns a doctor about a drug’s inherent dangers, it has fulfilled its legal duty to provide a warning. See Hall v. Merck, Sharp & Dohme, 774 F.Supp. 604, 605-06 (D.Kan. 1991) (granting summary judgment to a drug manufacturer because it discharged its legal duty to plaintiff by warning prescribing physician of drug’s inherent risks); Phelps v. Sherwood Med. Indus., 836 F.2d 296, 301-03 (7th Cir.1987). Under Kansas law, a plaintiff cannot prevail against a prescription drug manufacturer in a failure to warn case where the manufacturer warned the learned intermediary of the drug’s inherent risks. Wright v. Abbott Labs., Inc., 259 F.3d at 1233 (internal quotation marks omitted). “The overwhelming majority of jurisdictions to address this issue apply the learned intermediary doctrine to define a pharmaceutical company’s duty to warn of risks associated with the use of a prescription drug.” In re Norplant Contraceptive Prod. Liab. Litig., 215 F.Supp.2d 795, 806 (E.D.Tex.2002)(citing Serna v. Roche Lab., 101 N.M. 522, 524, 684 P.2d 1187, 1189 (N.M.App.1984), and Hines v. St. Joseph’s Hosp., 86 N.M. 763, 527 P.2d 1075 (Ct.App.1974)). In Perfetti v. McGhan Medical, 99 N.M. 645, 662 P.2d 646 (Ct.App.1983), a surgeon inserted a mammary prosthesis into the plaintiff. See 99 N.M. at 648, 662 P.2d at 647. Approximately twenty-five months after the prosthesis was implanted, it deflated. See id. at 648, 662 P.2d at 647. When the surgeon removed the prosthesis, a split about a half an inch on the front and half an inch on the back was discovered. See id., 662 P.2d at 647. The prosthesis was manufactured by the defendant. See id., 662 P.2d at 647. The Court of Appeals stated that “[a] manufacturer of a product ... which is obtainable only through the services of a physician, fulfills its duty if it warns the physician of the dangers attendant upon its use, and need not warn the patient as well.” Id., 662 P.2d at 649 (internal quotation marks omitted). The Court of appeals stated: In this case the trial court could have ruled that there was no factual issue as to the adequacy or properness of defendant’s warning as to the nature and extent of the danger, and that the warning was deficient as a matter of law. Although the surgeon knew generally of the danger of deflation, he had only minimum knowledge of delayed deflation at the time the prosthesis was implanted. The surgeon expected the prosthesis to last from 10-to-15 years and would not have used the prosthesis if he had been aware of the danger resulting from wear due to a fold in the prosthesis. A witness for defendant testified there is a 20-to-30 percent incidence of capsular contracture where there has been a subcutaneous mastectomy, that the manufacturer was aware that folding and rubbing of the prosthesis was foreseeable as a result of capsular contrac-ture and that no warning was given as to this problem. Defendant got more than the evidence supported when the issue of the sufficiency of the warning was submitted to the jury. Id. at 650-51, 662 P.2d at 650. In Serna v. Roche Labs, the plaintiff contended that he contracted Stevens-Johnson syndrome as a reaction to a medication proscribed by his doctor. See 101 N.M. at 523, 684 P.2d at 1188. The plaintiff alleged that no warnings were given about the possible dangers of the medication. See id. at 524, 684 P.2d at 1189. The Court of Appeals of New Mexico stated: “This allegation states a theory of liability because, where dangers from use can be anticipated, the manufacturer must provide adequate warnings or the product is defective.” Id., 684 P.2d at 1189 (citing Restatement (Second) of Torts § 402A cmt. h). The Court of Appeals explained that, “[w]here the product is a prescription drug, the manufacturer’s duty to warn is fulfilled if it warns the physician, not the patient.” Serna v. Roche Labs., 101 N.M. at 524, 684 P.2d at 1189. The Court of Appeals stated that the adequacy of a warning to a physician is determined by the following criteria: 1. the warning must adequately indicate the scope of the danger; 2. the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the drug; 3. the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4. a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and, most importantly, in the context of the present case; 5. the means to convey the warning must be adequate. Id., 684 P.2d at 1189. The Court of Appeals found that the package insert for the medication and the PDR listing of “Stevens-Johnson Syndrome” in the section on allergic reactions was a prima-facie showing of adequacy. Id. at 525, 684 P.2d at 1190. The plaintiff in Serna v. Roche Labs did not introduce “evidence which would support a factual question as to the adequacy of the warnings.” Id. at 525, 684 P.2d at 1190. The Court of Appeals stated that, if the nonmovant presents evidence of the inadequacy of the warnings, however, “it is improper for the court to grant summary judgment for the drug manufacturer. Here, plaintiff presented no evidence of the inadequacy of the warnings and summary judgment [wa]s proper.” Id., 684 P.2d at 1190. See Ackermann v. Wyeth Pharm., No. 06-41774, 2008 WL 1821379 at *3 n. 5 (5th Cir. April 24, 2008)(stating that “the learned-intermediary doctrine is not an affirmative defense. Under Texas law, it delineates to whom a defendant— usually a prescription drug manufacturer — owes the duty to warn, but it is not used to show that the plaintiff has no valid case.”). In Richards v. Upjohn Co., 95 N.M. 675, 625 P.2d 1192 (Ct.App.1980), the Court of Appeals reversed summary judgment granted for the defendant drug company in a suit arising out of personal injuries suffered by the plaintiff which allegedly resulted from medical treatment by a medication that the defendant manufactured. See id. at 676, 625 P.2d at 1193. The Court of Appeals noted that “[p]roximate cause is a factual issue, unless all facts regarding causation are undisputed or, as a matter of law, there is an independent intervening cause.” Id. at 678, 625 P.2d at 1195. It noted that: “Consequently, unless, as a matter of law, 1) [the defendant’s warnings are adequate, or 2) [the prescribing doctorj’s failure to consult the appropriate literature before prescribing the [medication] constitutes an independent intervening cause, a genuine issue of material fact exists and that precludes summary judgment.” Id., 625 P.2d at 1195. The Court of Appeals held that the plaintiff produced circumstantial evidence regarding the cause of the injury he suffered where the defendant had publically acknowledged that the medication could cause deafness that was published in the PDR and the plaintiff demonstrated that he had a dramatic loss of hearing during the period of time he was taking the medication. See id, 625 P.2d at 1195. The Court of Appeals stated that “[i]t is improper for a court on summary judgment proceedings to decide that the warnings of a manufacturer of a drug that is dangerous if misused are adequate as a matter of law if evidence of inadequacy is presented.” Id at 679, 625 P.2d at 1196. The Court of Appeals also held that “[a] doctor’s negligence is not, as a matter of law, an intervening cause exonerating the drug company, if the doctor’s act is reasonably foreseeable.” Id, 625 P.2d at 1196. The Court of Appeals stated: “Although some courts have held that the inadequacy of a drug company’s warnings cannot be the proximate cause of the patient’s injury when the physician failed to consult the literature or observe the warnings concerning the drug he used, ... the better reasoned cases do not reach this result.” Richards v. Upjohn Co., 95 N.M. at 681, 625 P.2d at 1198 (internal citations omitted). The Court of Appeals summarized: “The issue, is still the foreseeability of the doctors’ actions. If it was foreseeable that doctors might not consult the PDR or package inserts before using [the medication], a doctor’s failure to do so does not constitute an independent intervening cause relieving a drug company, whose warnings were inadequate, from liability.” Id. at 680, 625 P.2d at 1198. In Thom v. Bristo-Myers Squibb Co., 353 F.3d 848 (10th Cir.2003), the Tenth Circuit discussed the learned-intermediary doctrine in Wyoming. See 353 F.3d at 851. The Tenth Circuit noted that “[fjorty-four other jurisdictions have adopted the learned intermediary doctrine in prescription medicine cases.” Id. at 852 (citing Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829, 838 n. 11 (2001)). The Tenth Circuit noted that the Tenth Circuit “ha[d] implied in an analogous case that Wyoming would adopt the doctrine.” Thom v. Bristol-Myers Squibb Co., 353 F.3d at 852. The Tenth Circuit rejected the plaintiffs’ argument that the learned-intermediary doctrine should not be applied because the Wyoming Supreme Court and Legislature and had not specifically adopted the doctrine, “despite a Wyoming district court’s prediction fourteen years ago that [they] would.” Id. The Tenth Circuit explained: “[S]ilence on the part of the state means only that it has not had occasion to review the matter, not that it disagrees with the federal court’s interpretation of state law.” Id. The Tenth Circuit stated: Although the Wyoming Supreme Court has not to date acknowledged the learned intermediary doctrine, neither has it denied the doctrine; it simply has not ruled on the issue. We can and must safely assume that the delay, in the grandest traditions of all common-law courts, is due to the absence of a well presented and soundly argued case, rather than indicative of some invented implication that the doctrine does not exist. Id. (internal bracket and quotation marks omitted). The Supreme Court of Appeals of West Virginia, however, has rejected the learned-intermediary doctrine. See State Ex Rel. Johnson and Johnson Corp. v. Karl, 647 S.E.2d at 913. In State Ex Rel. Johnson and Johnson Corp. v. Karl, the court explained that the learned-intermediary doctrine “provides an exception to the general rule imposing a duty on manufacturers to warn consumers about the risks of their products.” 647 S.E.2d at 902 (internal quotation marks omitted). The court stated that the learned-intermediary doctrine “stands for the proposition that a drug manufacturer is excused from warning each patient who receives the product when the manufacturer properly warns the prescribing physician of the product’s dangers.” Id at 902-903. The court stated that “[s]ome authorities have suggested that the number of jurisdictions having adopted the doctrine is an overwhelming majority .... [but that it’s o]wn research has yielded a markedly different result.” Id. at 903. The court found that “a mere twenty-one states have expressly adopted the learned intermediary doctrine.” Id. New Mexico was not among the states that the court found had expressly adopted the learned-intermediary doctrine. See id. at n. 6. The court stated that “the highest courts of the remaining twenty-two states, ... [including] New Mexico, ... have not adopted the learned intermediary doctrine.” Id. at 905. “Thus, while the doctrine is widely applied among lower courts, the number of high courts who have followed suit and expressly adopted the doctrine, while admittedly in the majority, do not make up the overwhelming majority that has often been suggested by courts and commentators.” Id. (emphasis in original). The court noted that: Among the primary justifications that have been advanced for the learned intermediary doctrine are (1) the difficulty manufacturers would encounter in attempting to provide warnings to the ultimate users of prescription drugs; (2) patients’ reliance on their treating physicians’ judgment in selecting appropriate prescription drugs; (3) the fact that it is physicians who exercise their professional judgment in selecting appropriate drugs; (4) the belief that physicians are in the best position to provide appropriate warnings to their patients; and (5) the concern that direct warnings to ultimate users would interfere with doctor/patient relationships. Id. The court stated it found “these justifications for the learned intermediary doctrine to be largely outdated and unpersuasive.” Id. at 906. The court noted that the doctrine dated to 1925. See id. The court explained that: Significant changes in the drug industry have post-dated the adoption of the learned intermediary doctrine in the majority of states in which it was followed. We refer specifically to the initiation and intense proliferation of the direct-to-consumer advertising, along with its impact on the physician/patient relationship, and the development of the internet as a common method of dispensing and obtaining prescription drug information. Id. at 907. “Consumer-directed advertising of pharmaceuticals thus belies each of the premises on which the learned intermediary doctrine rests.” Id. at 910. The court quoted Edwards v. Basel Pharmaceuticals, 116 F.3d 1341 (10th Cir.1997), stating that: When all of its premises are absent, as when direct warnings to consumers are mandatory, the learned intermediary doctrine, “itself an exception to the manufacturer’s traditional duty to warn consumers directly of the risk associated with any product, simply drops out of the calculus, leaving the duty of the manufacturer to be determined in accordance with general principles of tort law.” State Ex Rel. Johnson and Johnson Corp. v. Karl, 647 S.E.2d at 911 (quoting Edwards v. Basel Pharm., 116 F.3d at 1343) (discussing the adequacy of warnings for nicotine patches under Texas law). The court stated: “Given the plethora of exceptions to the learned intermediary doctrine, [it] ascertained] no benefit in adopting a doctrine that would require the simultaneous adoption of numerous exceptions in order to be justly utilized.” State Ex Rel. Johnson and Johnson Corp. v. Karl, 647 S.E.2d at 913. In Porter v. Eli Lilly and Company, No. 1:06-ev-1297-JOF, 2008 WL 544739 (N.D.Ga. February 25, 2008), the plaintiff asked the district court to “take judicial notice of Lilly’s website www.prozac.com as evidence that Prozac had been extensively advertised in the media and therefore § 6(d)(2) [of the Restatement (Third) of Torts] would require a consumer warning.” No. 1:06-cv-1297-JOF at 17 (“Porter Opinion”). The district court noted that “this would be an expansion of the current state of law as it exists in Georgia which affirmatively recognizes the learned intermediary doctrine.” Id. The district court stated that “[t]he Supreme Court of Georgia’s citation to § 6(d)(1) — which is unrelated to direct notification to consumers issue — is not a sufficient basis upon which this court could conclude that Georgia would now adopt the suggestions of the Restatement (Third), reject the learned intermediary doctrine, and require direct warning to consumers.” Porter Opinion at 17. The district court found that the plaintiffs assertion that Eli Lil