Last Tuesday, April 17, we posted about “Shouting ‘Credibility’ and Praying for Trial.” Our position was this: If the treating physician says that he already knew about a drug’s risks, or that he would not have passed on to the patient different warnings if the package insert had contained them, a product liability case is over. No additional warnings would have avoided the patient’s alleged injuries, so the learned intermediary doctrine’s requirement of causation bars the plaintiff’s claim. Summary judgment should be granted.

We received three comments about that post. One was posted on-line, so you can read it after last Tuesday’s post. Although we of course have a reaction to that reader’s comment (and we thank him or her for posting it), we’re not able to post a response on-line. We’re keenly aware that plaintiffs’ lawyers, including plaintiffs’ lawyers opposing us in litigation, visit this blog, so anything that we write could (improperly, we might add) be used against us in court. We thus have certain ideas or positions that we simply cannot express in writing in this forum. We apologize for that, but such is life.

The other two comments about last Tuesday’s post were not posted on-line, but instead came to the two of us by e-mail. One visitor wrote that, in Pennsylvania, case law occasionally permits a case to go to trial even where the fact witness testimony all points in one direction. For example, suppose that all of the witnesses say that the light was red. But physical evidence — skid marks, the point of impact of the vehicles, etc. — suggest that the light was green. There’s a disputed issue of fact, so a court should not grant summary judgment.

We don’t disagree with that rule in that specific hypothetical. But it’s not ours. In the learned intermediary context, if the treating physician says that a different warning would not have changed his decision to prescribe a drug or the warnings that he gave the patient, the game is over. There’s no possible physical evidence to dispute that testimony. If the physician says different warnings wouldn’t have mattered, and plaintiff can do no more than hope the jury will disbelieve that testimony, then there should be no trial. The plaintiff bears the burden of proof on causation, and “no evidence” — the situation if the treater is cross-examined into oblivion — simply cannot carry the plaintiff’s burden of proof.

The last comment asks this: Suppose the treating physician says that different warnings would not have changed his conduct, but plaintiff proffers a medical expert witness from the treater’s specialty who says that, if the warnings had been different, the standard of care would have required treating physicians to act differently? Competent physicians would not have prescribed the drug (or would have given the patient different warnings). Wouldn’t that testimony prevent summary judgment?

Not in our courts, it wouldn’t. Product liability cases are not medical malpractice cases. If the treating physician would have violated a standard of care by his conduct, then the treating physician might theoretically be liable for malpractice. But that’s not the question in a product liability case. In a product case, the question is whether different warnings would have prevented the plaintiff’s injury. If the treating physician would still have prescribed the drug and given the patient the same warnings — properly or not — then the manufacturer could have done nothing to prevent the plaintiff’s injury. The causal link required in a product liability case has been broken, whether or not there might be intervening malpractice along the way.

Whether we agree with our readers’ comments or not, and whether the comments are posted on-line or sent to us by e-mail, we’re delighted to receive your feedback. It’s sometimes mighty lonely sitting here behind this computer screen, and it’s always nice to have tangible evidence that the world is paying attention.

Keep those cards and letters coming.