We’ve had the misfortune to encounter recently failure to warn claims that we think should be dismissed (well, we think all claims against our clients should be dismissed – but these especially) because they just don’t make any sense. The claims we’re ticked off about at the moment involve a disconnect between the allegations and the facts. Specifically, because they involve warnings about kinds of injuries that the plaintiffs themselves don’t even claim to have.
Yeah, that’s right – some plaintiffs have the gall to say that our clients’ warnings about, say, gallstones (that’s a good one), are “inadequate,” even though they’ve never suffered from a gallstone in their lives.
We see this mostly in the context of mass torts, where the name of the game is to try to overwhelm defendants with as many claims as possible, even if there’s no basis for them. There’s a flurry of advertising trying to scare people about Drug X, and the hotlines collect claims by people who don’t have the condition that originally motivated the litigation. We’ve also encountered this type of warning claim in one-off cases, mostly where something goes south (usually an expert, but sometimes a treater) on what was originally thought to be the main claim – think of a claim where the plaintiff starts off claiming overdose, but then neither the records not the experts can support that.
In either event, what we wind up with are plaintiffs who claim something like this: “So what if I didn’t actually have a stroke? You still didn’t warn about the risk of stroke. If you’d told the truth about strokes I’d have been so scared I wouldn’t have bought your product at all, no matter what my prescriber told me, and I wouldn’t have been gotten kidney failure…. Oh, yeah, and by the way, because you didn’t warn about stroke, it doesn’t matter that you did warn about the risk of kidney failure in 13 different ways.”
Needless to say, to us this kind of claim is bogus. For one thing, the argument stretches the fabric of causation too thin. The act that the plaintiff claims would have been deterred is the purchase of the product in the first place, not an improper use of the product. Well, the purchase of an FDA-approved prescription medical product is not, in and of itself, the kind of act the law of torts should be seeking to deter. What product liability law is supposed to be about is preventing injuries from defective products – and if the manufacturer warned of the only injury that actually happened, then there’s no defect.
In our opinion.
The other really obnoxious thing about this kind of claim is that it dramatically expands both liability and the scope of discovery. It expands liability because an inadequate warning about anything all of a sudden turns into liability for everything – even risks about which the defendant actually give an adequate warning. It expands discovery because any purportedly inadequate warning about any conceivable risk suddenly becomes relevant in every case, because the plaintiff can just say “if you’d warned about that, I wouldn’t have followed my doctor’s orders and used that product.”
Anyway, the good news is that this type of claim has been recognized for what it is and has generally been rejected. There’s a really smart professor, Dan Dobbs, who wrote his own book on torts (before Bexis did), and he says these claims are beyond the pale. “[T]he injury suffered [by a plaintiff] must be within the class of injury that the warning requirement was meant to avoid.” Dan B. Dobbs, The Law of Torts, at 1018 (2001). He uses an asbestos example to make his point, but the rationale is just as the same for a claim that a stroke warning could be relevant where the plaintiff suffered from kidney failure:
For example, the plaintiff, if properly warned that asbestos might cause cancer, might have ceased to work around asbestos. . . . But the failure to provide such warning would not result in liability if the plaintiff, not being warned, kept her job and lost a hand in a job-related machine accident. In that example, failure to warn would be a cause in fact. . .but it is not a proximate legal cause. It is not, in other words, within the risk that a warning was designed to avoid.
There are also decisions in our own area of expertise that refuse to allow a plaintiff to recover for injury “A” with an allegation that the defendant failed to warn solely about injury “B.” Drug warnings relating to injuries that a plaintiff did not suffer are simply irrelevant. For example, a vaccine recipient who suffered Guillain-Barre syndrome couldn’t raise allegations of inadequate warnings concerning “other risks such as serum sickness or myelitis”:
The question of the adequacy of the warnings must be confined to consideration of whether the warnings were sufficient to inform the plaintiff of the risk of the particular condition or disease which allegedly caused his injury. . . . [A] determination that warnings were inadequate with respect to some other condition does not bear on our conclusion that [plaintiff] was adequately informed of the risk of severe allergic reaction to the swine flu vaccine.
Mills v. United States, 764 F.2d 373, 379 (5th Cir. 1985).
For some reason vaccine cases first seemed to attract this sort of claim. In Novak v. United States, 865 F.2d 718, 726 (6th Cir. 1989), the court likewise ruled that “the district court erred in finding the warning inadequate, negligent, and insufficient because it did not specifically caution those who may have experienced ‘viral encephalitis’” where “[i]t was not proven that [plaintiff] had actually suffered from viral encephalitis.” In Novak it must have been rather obvious that the plaintiff was alleging remote warning claims to avoid having to prove that he suffered from the correct injury.
The New York Court of Appeals (the highest court in that state) confronted a similar claim in Martin v. Hacker, 628 N.E.2d 1308 (N.Y. 1993). Martin was a classic example of the “type two” case we mentioned earlier. The plaintiff alleged inadequate warnings because there wasn’t a contraindication (something telling doctors don’t use the product at all in a particular situation) due to an supposedly increased risk of suicide in “depressed” patients. The plaintiff’s proof failed – because nobody could establish that the decedent was depressed. The plaintiff tried to go ahead with the claim anyway, but the court said no way. It held, “we are not concerned with the adequacy of the Contraindications section” because the decedent “had no history of” depression. Id. at 1313.
A classic “type one” mass tort example of the “you failed to warn about something else” claim arose in In re Rezulin Products Liability Litigation, 331 F. Supp.2d 196 (S.D.N.Y. 2004). The rap against Rezulin has been that it causes liver problems, but in their rush to solicit all the claims they could, the plaintiffs’ attorneys ended up with a number of claims that did not involve liver injury at all. Since they couldn’t be bothered proving anything about those plaintiffs’ actual injuries, the MDL counsel tried to go with the liver injury warning case they’d developed even where there was nothing wrong with these plaintiffs’ livers – alleging instead that these plaintiffs wouldn’t have used Rezulin at all if there’d been a better lever warning.
Plaintiffs’ final contention is that the alleged failure adequately to warn of the risk of liver damage was causally connected to their injuries, even assuming that they sustained no liver injury, because an adequate disclosure of the hepatic risks would have deterred physicians from prescribing the drug although such potential side effects as headaches and nausea were insufficiently grave to have done so. . . .
Id. at 201. The court tossed those claims out on their proverbial ear. This “argument fail[ed]” for several reasons: (1) the expert who supposedly supported the claim didn’t treat any of the plaintiffs and couldn’t say what the actual treaters would have done; (2) plaintiffs couldn’t prove that the nondisclosed risk “was sufficiently high that it would have changed the treating physician’s decision,” and (3) because the risk wasn’t the one the plaintiffs suffered, “the evidence upon which plaintiffs rely is insufficient to justify an inference that the physicians who treated these plaintiffs would not have prescribed the drug.” Id. Moreover, as to the injuries that these plaintiffs did have, “the PDR specifically warned of the[m]” so the warnings that mattered were adequate as a matter of law. Id. at 202.
In Pennsylvania, breast implant plaintiffs sued, not only manufacturers, but physicians – presumably because they wanted to defeat diversity jurisdiction. They alleged the same sort of claim, only couched in informed consent rather than product liability, that the prescribing doctors failed to discuss certain risks (gel bleed, infection, autoimmune diseases) when the only thing they suffered from was something else (capsular contracture). The court held that this kind of warning liability was too broad to be permitted:
If I accept plaintiffs’ argument, the law will be permitting recovery for a risk that the plaintiff assumed because the plaintiff might have made a different decision as a result of knowing of other risks for which the plaintiff did not experience any harm.
In re Silicone Breast Implant Litigation, 64 D. & C. 4th 21, 25-26 (C.P. Allegheny Co. 2003). To allow liability based upon undisclosed risks that never happened “would have a reach that extends far beyond the purposes for the doctrine.” Id. at 26.
There are a number of other cases that say more or less the same thing. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1020 (10th Cir. 2001) (failure to warn of concomitant use of two drugs noncausal where prescriber did not prescribe concomitantly); King v. Danek Medical, Inc., 37 S.W.3d 429, 446-47 (Tenn. App. 2000) (“theoretical possibility that some pedicle screw devices. . .can cause various bone problems, without proof that it occurred to these plaintiffs. . ., cannot defeat summary judgment”); Peterson v. Parke Davis & Co., 705 P.2d 1001, 1004 (Colo. App. 1985) (“the request for an instruction that [defendant] had a duty to warn of all known dangers was properly denied. In a failure to warn case, the plaintiff has the burden of proving that the manufacturer gave inadequate warning of the danger which caused the injury”); In re Norplant Contraceptive Products Liability Litigation, 1997 WL 81094, at *1 (E.D. Tex. Feb. 21, 1997) (“[W]hether the Norplant physician warnings were not adequate with respect to an injury not alleged is not relevant to whether physicians were adequately warned of [p]laintiffs’ alleged injuries”).
We think these cases are rightly decided. In product liability, failure to warn is truly the last refuge of the scoundrel, for a lot of reasons, such as not having to spend the money to get engineering experts to come up with alternative designs. There’s a difference between bare “but for” causation and the kind of legal cause necessary before the law will impose liability. It’s what lawyers call “substantial factor”:
The word “substantial” is used to denote the fact that the defendant’s conduct has such an affect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called “philosophic sense,” yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.
Restatement (Second) of Torts §431, comment a (1965).
A claim that a failure to warn about one thing would have fortuitously prevented an entirely separate injury (that may well have been adequately warned about) by causing the plaintiff’s prescribing physician not to prescribe the product at all or the plaintiff to disobey doctor’s orders is simply too tenuous a causal link. In the words of the Restatement, that kind of thing is merely “one of the great number of events without which any happening would not have occurred,” and that’s not enough.