The Fifth Circuit affirmed summary judgment in Pustejovsky v. Pliva, Inc., 09-10983, slip op. (5th Cir. Oct. 8, 2010), the other day.  We covered the original summary judgment, here.  The defendant, a generic manufacturer of metoclopramide, first lost on preemption.  Slip op. at 5.  That’s not a surprise since generic preemption’s been rejected just about everywhere after Levine.

Then the court turned to the defendant’s argument that the prescribing physician already knew of the risk, which would defeat causation under the learned intermediary rule in Texas.  The trial court said the doctor knew, but the court of appeals disagreed, finding that the prescriber “significantly underestimated” the actual risk at issue.  Slip op. at 7-8.

End of the line for the defendant’s summary judgment?  Nope.  There’s still one more defender to beat.

Tackled short of first down.

There’s no evidence that a revised warning would have changed the outcome of the case because – the doctor never read the warning in the first place:

[Plaintiff] has not carried her burden. As [plaintiff] admits, [the prescriber] did not recall ever reading the package insert for the drug or consulting the Physician’s Desk Reference.  [The prescriber’s] lack of memory, of course, does not preclude the possibility that she had read these materials, but neither can it sustain [plaintiff’s] burden.

Slip op. at 8.

Fortunately, there’s no heeding presumption in prescription drug cases in Texas, courtesy of a Herrmann/Bexis collaboration by the name of Ackermann v. Wyeth, 526 F.3d 203 (5th Cir. 2008).  That means that it remains the plaintiff’s burden to come up with affirmative evidence.  This plaintiff didn’t – nothing but rank speculation:

She suggests, for example, that a modification to [the drug’s] warning label might have come up in conversations with other physicians or been discussed at a continuing-education seminar.  Certainly, these scenarios are possible.  Ultimately, however, without any summary-judgment evidence to support them, they remain nothing more than possibilities. . . .  While [plaintiff] can imagine any number of scenarios to fill the gaps in [the prescriber’s] memory, she has provided evidentiary support for none of them.  Accordingly, [plaintiff] fails to demonstrate a genuine issue of material fact regarding causation.

Id.

There’s more than one way to win a case.  Use them all.