Thanks to a scholarly cartoon owl, I remember how many licks it takes to get to the Toostie Roll center of a Tootsie Pop (for those of you who don’t remember, it was three). It was a pretty simple endeavor, two licks and a bite. A New Mexico judge’s recent decision denying the maker of Prozac’s assertion that the state’s supreme court would likely adopt the learned intermediary doctrine, and granting in part its motion for summary judgment was not so simple.

On Friday, the Judge James O. Browning, who even allowed Eli Lilly & Co. to file a post-hearing brief on the topic, handed down a whopping 106-page opinion dedicated to his belief that the Internet drug promotion and the use of direct-to-consumer advertising made the defendant’s argument “outdated and unpersuasive.” According to Judge Browning’s ruling allowing the post-hearing brief, Lilly had already submitted nearly 300 pages in support of its argument and oral arguments lasted five hours.

Mark Rimbert filed suit against Lilly, alleging that his father’s use of Prozac caused him kill his wife and their dog before turning the gun on himself. His father’s prescribing physician said during his deposition that had Lilly given a stronger warning about the need to monitor patients when treatment began or when dosages were changed, he would have passed the information along to the patient.

Judge Browning held that New Mexico would not likely adopt the learned intermediary doctrine because the defense could leave some plaintiffs uncompensated for injuries caused by the use of dangerous prescription drugs and because the doctrine is “fundamentally inconsistent” with the state’s strict liability jurisprudence.

Rimbert’s negligence per se and breach of warranty claims were dismissed.

The case is Rimbert v. Eli Lilly, No. 06-cv-874, D. N.M.