For some reason, we recently found ourselves comparing our favorite defenses to our favorite rock bands. Preemption, of course, would be The Beatles, and Daubert/Frye the Rolling Stones. The learned intermediary rule could be Bob Dylan (I know, we’re showing our age, here). Comment k could correspond to Led Zeppelin, and state of the art might be The Who.
And it seems that, for each of these bands, there’s a song we really like that gets slighted (in our opinion) when it comes to air time on classic rock stations. For The Beatles that would be It’s All Too Much. For the Rolling Stones, when you discount those songs generally considered too raunchy for mainstream radio (one from Beggars Banquet, one from Let It Bleed and one from Goats Head Soup, you can guess which ones), we’d say the disrespected Stones song we like most is Child of the Moon. For Bob Dylan, we almost never hear Desolation Row on the radio (and thanks to Zimmerman’s late-in-life conversion to copyright trolldom, you won’t find a decent studio version on YouTube, either). For Zep, we’d award the buried treasure award to Immigrant Song. And finally, for The Who, we’ve always been peculiarly partial to the Punk and the Godfather.
Somewhat similarly disrespected as a defense to warning causation has been the prescriber’s failure to read the relevant warnings. One of the benefits of the learned intermediary rule is that it replaces self-interested plaintiffs with highly trained medical professionals when it comes to warnings, and in particular with respect to warning causation. While a plaintiff with dollar signs in his/her eyes will typically testify to whatever is necessary to establish warning causation (“Oh, yes, if I had only known about that risk, I would have rejected my oncologist’s recommendation and never taken the drug.”), medical doctors are most interested in the effective treatment of their patients, and thus typically tell it like it is. The truth often is that, for one reason or another, the prescribing physician did not rely on the particular warning in question, and thus a different one wouldn’t have made any difference.
There are a number of fact patterns that lead to physician non-reliance, the golden boy of the bunch being when a doctor (a trained professional, after all) already knew about the risk in question and thus did not need to be warned about it. Another commonly seen warning causation defense is when the doctor testifies that none of the plaintiff’s warning sophistry matters, s/he would still treat the plaintiff the same way today.
Yet another fact pattern that can lead to summary judgment is when the learned intermediary did not rely on the allegedly inadequate warning because s/he simply did not read the warning at all while treating the plaintiff. This one gets less play than the others – perhaps because of how courts sometimes use “communication” to get around it in non-prescription medical product cases (more on that to come), or sometimes because plaintiffs might use the same testimony to claim medical malpractice.
But prescriber failure to read can be a powerful tool. Indeed, precisely that scenario is how we ended up with Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013). The plaintiff in Bartlett was forced to assert that bogus design defect claim not because of preemption (the rulings preceded PLIVA v. Mensing, 131 S. Ct. 2567 (2011), which is why Bartlett was first in line after Mensing was decided), but rather because the plaintiff’s treating physician never read the defendant’s package insert:
[The prescriber] admitted at his deposition that he never reviewed [defendant’s generic drug] label before treating [plaintiff] and that “nothing about it influenced [his] prescribing of the drug” or what he told [plaintiff] about it. When asked if he reviewed the identical [innovator drug] label before treating [plaintiff], [the prescriber] responded “not in detail, no.” He then admitted that he never read the part of the [innovator drug] label that listed [plaintiff’s condition] as potential adverse reactions. . . .
Bartlett v. Mutual Pharmaceutical Co., 731 F. Supp.2d 135, 143 (D.N.H. 2010), aff’d, 678 F.3d 30 (1st Cir. 2012), rev’d, 133 S.Ct. 2466 (2013).
Because the prescriber in Bartlett did not read the defendant’s warning “even if those warnings had been stronger, as [plaintiff] alleges they should have been, they would not have reached [the prescriber’s] attention or prevented [plaintiff’s] injuries.” Id. at 146.
[The prescriber] made clear that he never reviewed [defendant’s] label before treating [plaintiff] and that nothing about it influenced his decision to prescribe the drug or what he told her about it. . . . Thus, even assuming arguendo that [defendant] had a duty to strengthen the . . . warning on its [drug’s] label, that stronger warning would not have affected [the prescriber’s] decision or prevented [plaintiff’s] injuries.
Id. This same failure to read defeated the plaintiff’s attempt to claim inadequacies in the defendant’s patient medication guide. “[A] medication guide . . . is reprinted at the end of the [drug’s] labeling,” and “[plaintiff’s] doctor did not read or rely upon [the] label,” therefore a “medication guide, even if reprinted there, would not have affected the doctor’s decision or prevented [plaintiff’s] injuries.” Bartlett v. Mutual Pharmaceutical Co., 2010 WL 3659789, at *7 (D.N.H. Sept. 14, 2010).
Dynamite stuff. We’ve decided to take a look at other cases that reach the same result. So here is our survey of cases dismissing claims where the learned intermediary physician failed to read the warnings he received. We found a lot of cases – at least something useful from 43 jurisdictions: all except Delaware, Hawaii, Maine, Nebraska, New Mexico, Oregon, Puerto Rico, Rhode Island, and Wisconsin.
As alluded to earlier, plaintiffs sometimes try to overcome inconvenient facts about a failure to read warnings with quirky arguments that the defendant should have communicated in a different fashion. These range from claims that the warnings should have been bolded and boxed (almost always preempted, as we discussed here) to claims that the warnings should have been supplemented with “Dear Doctor” letters (which we discussed here). We’re not going to go into those non-substantive permutations here, because the FDA determines the formatting of whatever warnings are given and how they are conveyed when prescription drugs and devices are at issue. Those arguments are more relevant, and far more prevalent, in non-drug/device cases where the presentation of warnings is not minutely governed by federal law, and unlike prescribing physicians, there are plaintiffs who can’t read English, who have to deal with warnings in workplace settings, or who are just plain knuckleheads in using products. Whether a particular warning should have been in a different location, in pictures, in bright red, or in a different language frankly doesn’t matter nearly as much when the warning’s intended recipient is a prescribing physician. Today, we’re just looking at failure to read particular warning content as precluding causation in a failure to warn case. However, where we can’t find much prescription medical product law on point we’ve taken a stab at looking at favorable general law outside our sandbox. “[F]ailure to read the available warning and instruction literature harms [a plaintiff’s] ability to prove that a different warning would have changed his conduct.” 2 David G. Owen & Mary J. Davis, Owen & Davis on Prods. Liab. § 11:20 (4th ed. 2014).
And what about cases that go the other way? Beware that a few exist. As to them, however, we adhere to our general rule that we don’t do the other side’s research for them.
The Alabama Supreme Court held, in E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963 (Ala. 1985), that failure by the plaintiff (as opposed to a prescribing physician) to read a drug label precluded any finding of causation:
[N]othing in the nature of [defendant’s] inadequate warning prevented plaintiff from reading it. Plaintiff could have read this allegedly inadequate, unspecific warning as easily as he could have read an adequate, specific warning. And, no amount of specificity would have protected this plaintiff, because he would not have read a warning. Thus, the presumed inadequacy of [defendant’s] warning did not proximately cause plaintiff’s injury. . . . Therefore, we hold today that a plaintiff who does not read an allegedly inadequate warning cannot maintain a negligent-failure-to-adequately-warn action unless the nature of the alleged inadequacy is such that it prevents him from reading it.
Id. at 971.
This ruling has been extended to situations where the prescriber fails to read a warning. Emody v. Medtronic, Inc., 238 F. Supp.2d 1291, 1293 (N.D. Ala. 2003), held that an implanting physician’s failure to read warnings (among lots of other problems with the case) defeated causation. “[The prescriber’ testified that he did not obtain his information about the risks and benefits of the [device from [defendant]. . . . He did not even read the package insert.” Id. at 1293. This testimony defeated causation in a warning case:
[The prescriber] chose not to follow [defendant’s] warning because based on his experience. . . . He testified that he did not rely on [defendant’s] warnings. [Plaintiff] has failed to present a genuine dispute of material fact concerning [those] warnings.
Id. at 1296. See Woods v. Wyeth, LLC, 2016 WL 1719550, at *10 (N.D. Ala. April 29, 2016) (“[plaintiff] has not alleged that her physicians ever saw the package inserts or labeling for the generic drug . . ., much less that they relied on those labels”) (judgment on the pleadings on causation granted); Scharff v. Wyeth, 2011 WL 3320501, at *14 (M.D. Ala. Aug. 2, 2011) (plaintiff “testified that though she might have glanced at the [drug’s] Patient Information Insert, she did not read it. Thus, by her own admission, the insert could not have played any role in her decision”) (fraudulent concealment claim).
In In re Trasylol Products Liability Litigation, 2011 WL 2117257, at *5 (S.D. Fla. May 23, 2011), the court, applying Alabama law, reached a similar conclusion on similar facts:
The question therefore is whether there is record evidence establishing that an adequate warning would have been read and heeded by . . . [plaintiff’s] prescribing physician, and the injury would have been avoided. . . . Plaintiff cannot satisfy her burden of establishing proximate causation. There is no record evidence indicating that [the prescriber] read the warning that Plaintiff claims was inadequate, or that it played any role in prescribing decision. He testified that he prescribed [the drug] based on a routine developed in his practice and based on his experience with the efficacy of the drug.
Id. at *5.
We ran across non-drug/device Alabama precedent for the same proposition. Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185, 1192 (Ala. 1992) (“undisputed that [plaintiff] did not read the warning,” therefore “there was no evidence of proximate cause”); Chase v. Kawasaki Motors Corp., U.S.A., 140 F. Supp.2d 1280, 1288 (M.D. Ala. 2001) (“Alabama law bars a plaintiff who does not read an allegedly inadequate warning from maintaining a failure to warn action”).
We confess, we didn’t find much on failure to read drug warnings in Alaska. Would you believe a criminal case? In Solomon v. State, 227 P.3d 461 (Alaska App. 2010), a drunk driving defendant asserted the defense of “unwitting intoxication” claiming that he didn’t know that an OTC drug he had been using (overusing?) contained alcohol. However, the drug’s label – which the defendant admitted not reading – stated that it contained 10% alcohol. That defeated the defense because as a matter of law the criminal defendant was negligent in not doing so:
[I]t was undisputed that the label on the [OTC drug] plainly stated that the medicine contained 10 percent alcohol. [Criminal defendant] might not have read this label . . ., but no reasonable jury could conclude that [his] failure to read the label was reasonable and non-negligent.
Id. at 469. That’s not exactly the same thing as a civil finding of no causation as a matter of law from a professional physician’s failure to read, but it’s close enough to note, in the absence of anything better. Failure to read drug labeling in Alaska is at least negligence as a matter of law.
In Gebhardt v. Mentor Corp., 15 Fed. Appx. 540 (9th Cir. 2001) (all “Fed. Appx.” cases are non-precedential), the physician who implanted a medical device failed to read the labeling. That was fatal to a warning claim under Arizona law:
[T]estimony on the [device’s] warning label was not relevant to the cause of [plaintiff’s] injury because the evidence showed that [the prescriber] did not read the warning label and that he was a learned intermediary on the risks of the device. . . . The evidence at trial showed that [the prescriber] did not read or rely upon the allegedly inadequate warnings of the . . . device.
Id. at 542. Gebhardt relied on Gosewisch v. American Honda Motor Co., 737 P.2d 376 (Ariz. 1987) (superseded by statute on other grounds as stated in Jimenez v. Sears, Roebuck & Co., 904 P.2d 861, 865 (Ariz. 1995) (product misuse)), in which the Arizona Supreme Court held generally, where the plaintiff admitted never reading the owner’s manual (plaintiff testified that he “requested but did not receive” the manual when he bought the product used from a relative), “it cannot be said that a failure to warn was a proximate cause of the injury.” Id. at 380. See Carter v. APP Pharmaceuticals, LLC, 2013 WL 5532767, at *8 (D. Ariz. Aug. 13, 2013) (plaintiff’s “evidence does not establish a question of material fact regarding causation” because “Plaintiff’s physicians . . . did not read the [defendant’s] label”).
In In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, 2015 WL 5468712 (M.D. Ga. Sept. 16, 2015), the court applied the Arkansas learned intermediary rule and granted summary judgment where “it is undisputed that [the prescriber] did not recall reading the . . . product insert data sheet.” Id. at *1. That’s the only prescription medical product case on failure to read in Arkansas.
Elsewhere, the Arkansas Supreme Court has held that a plaintiff’s practice of not reading warnings precluded a finding of causation as a matter of law:
[Plaintiff] admitted that he had never read a label on [this type of] product during the three years he worked at [his employer]. Given this, . . . [plaintiff’s] failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.
Bushong v. Garman Co., 843 S.W.2d 807, 811 (Ark. 1992). See Ciba-Geigy Corp. v. Alter, 834 S.W.2d 136, 147 (Ark. 1992) (express warranty claim could not be based on material plaintiff “did not recall reading” because plaintiff “clearly was not influenced” by those materials); Lee v. Martin, 45 S.W.3d 860, 865 (Ark. App. 2001) (where plaintiff “did not look at” [the product] placement of an additional warning on the product “ would have been futile as a matter of law”).
Let’s start with the California Supreme Court. In Ramirez v. Plough, Inc., 863 P.2d 167 (Cal. 1993), the main holding was that there was no duty to warn about prescription drugs in languages other than English. However, after losing on that ground, the plaintiff-mother (the injured person in Ramirez was a minor) – who as a non-English speaker had not read the existing warnings − also claimed a defect in the English-language text (which she had not read). As to that theory, the court held that there was no causation as a matter of law:
The evidence submitted . . . precludes liability on this ground. Plaintiff’s mother . . . neither read nor obtained translation of the product labeling. Thus, there is no conceivable causal connection between the representations or omissions that accompanied the product and plaintiff’s injury.
Id. at 177.
Lots of California prescription medical product precedent follows the Ramirez rationale that failure to read precludes causation in warning cases. The Ninth Circuit did so in Motus v. Pfizer, Inc., 358 F.3d 659 (9th Cir. 2004):
Because the doctor testified that he did not read the warning label that accompanied [the drug] or rely on information provided by [defendant’s] detail men before prescribing the drug to [plaintiff], the adequacy of [defendant’s] warnings is irrelevant to the disposition of this case. We agree . . . that a product defect claim based on insufficient warnings cannot survive summary judgment if stronger warnings would not have altered the conduct of the prescribing physician. On the record adduced during discovery, [defendant] failed to establish proof that stronger warnings would have changed her husband’s medical treatment or averted his [injuries].
Id. at 661 (citations omitted).
In the otherwise execrable Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), decision, the court only had to consider innovator liability because the prescriber never read the generic labeling. As to failure to read, Conte followed existing California law, as stated in Ramirez:
There can be no proximate cause where, as in this case, the prescribing physician did not read or rely upon the allegedly inadequate warnings promulgated by a defendant about a product. . . . [B]ecause the prescribing physician testified unequivocally that he neither read the allegedly inadequate warning label nor relied on information provided by [defendant’s] representatives before he prescribed the drug to his patient, the adequacy of [those] warnings is irrelevant to the disposition of this case. Such is the case here
Id. at 319 (citations and quotation marks omitted). Accord Lord v. Sigueiros, 2006 WL 1510408, at *3 (Cal. Super. April 26, 2006) (undisputed evidence “is sufficient to make a prima facie showing that an element (causation) of each of the causes of action alleged against it cannot be established; in particular . . . [the prescriber] admits that he had not read the [drug] label before prescribing it to the decedent”), aff’d, 2007 WL 4418019, at *4 (Cal. App. Dec. 19, 2007) (no causation where the prescriber “did not review the Physicians Desk Reference”); Hexum v. Eli Lilly & Co., 2015 WL 4943959, at *6-7 (C.D. Cal. Aug. 18, 2015) (granting directed verdict where there was “no proof beyond speculation that [the prescriber] read [the drug’s] label before prescribing it”); Tucker v. Wright Medical Technology, Inc., 2013 WL 1149717, at *16 (N.D. Cal. March 19, 2013) (“[w]here the physician did not read the warnings, adequacy is irrelevant”); Phillippi v. Stryker Corp., 2010 WL 2650596, at *3 (E.D. Cal. July 1, 2010) (prescriber “received no direction or instruction from [defendant]”; “[defendant] cannot be liable as a matter of law for an injury which . . . would be due solely to the doctor’s decisions”), aff’d, 471 Fed. Appx. 663 (9th Cir. 2012); Latiolais v. Merck & Co., 2007 WL 5861354, at *3 (C.D. Cal. Feb. 6, 2007) (“where the prescribing doctor fails to read warnings or rely on information provided by the drug manufacturer before prescribing the drug, a plaintiff cannot show any alleged failure to warn by the drug manufacturer caused harm to the patient taking the drug”), aff’d, 302 Fed. Appx. 756 (9th Cir. 2008).
The directly on point law in California is so strong that we’re not citing any non-prescription medical product cases, even though we’ve run across several.
In Colorado a physician’s failure to read a package insert, can constitute product misuse. See Peterson v. Parke Davis & Co., 705 P.2d 1001, 1003 (Colo. App. 1985) (prescriber’s testimony “that he had not read the package insert” justified misuse instruction). The same conduct cut off causation as a matter of law in Wollam v. Wright Medical Group, Inc., 2012 WL 4510695 (D. Colo. Sept. 30, 2012).
Plaintiffs failed to submit evidence indicating that additional or different warnings would have made any difference because [the prescriber] testified in his deposition that he never read the warnings or instructions [defendant] included with its [device]. Therefore, [defendant] is entitled to summary judgment . . . to the extent [plaintiff’s] claim is premised on the inadequacy of the pre-surgery warnings [defendant] gave to [the prescribing] surgeon.
Id. at *6. There is also dictum in Fraley v. American Cyanamid Co., 589 F. Supp. 826, 827 (D. Colo. 1984), that “[t]he conduct of a prescribing physician may insulate a drug manufacturer from liability if it is affirmatively established that the doctor would not have heeded an adequate warning” – citing to the Washington Douglas failure-to-read case as an example.
In a non/drug-device case of interest, in Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1326 (Colo. 1986), the court rejected an argument that failure to read warnings was “foreseeable” because “plaintiff’s proposed rule would in effect reverse the policies supporting the requirement that manufacturers must provide adequate warnings.” See Baca v. Clark, 2007 WL 2022054, at *5 (D. Colo. July 9, 2007) (“Plaintiff’s failure to read either set of warnings reveals a causal disconnect between her allegations of the . . . labeling’s inadequacy and the occurrence of her injury”).
In Allen v. Mentor Corp., 2006 WL 861007 (D. Conn. March 31, 2006), the prescribing physician’s failure to read the defendant’s warning resulted in summary judgment:
A manufacturer cannot be found to have provided inadequate warnings when the physician who used the product failed to read the warnings provided. . . . Nonetheless, [the prescriber] faults the lack of a warning he claims not to have received by reason of his failure to read what was readily available to him. Plaintiff cites no authority for the proposition that Defendant, having made available a warning . . . should be held liable not for failure to provide a warning but for the failure of the doctor to read the warning.
Id. at *6. Therefore, “Plaintiff’s claim that adequate warnings would have altered [the prescriber’s] conduct in her case is unfounded . . . since he did not read them.” Id. at *7.
We didn’t find anything in Delaware.
District of Columbia
In the District of Columbia, a plaintiff’s failure to read an allegedly inadequate patient drug warning was held non-causal in Dyson v. Winfield, 113 F. Supp.2d 35, 41 (D.D.C. 2000), aff’d, 21 Fed. Appx. 2 (D.C. Cir. 2001), since “by plaintiff’s uncontradicted testimony, she did not read the warning.” Id. at 41 n.3. “Absent a claim that the warning was too obscure to be noticed, an unread warning cannot serve as a basis for a claim that the warning affected one’s behavior.” Id. We haven’t found a case involving a physician’s failure to read, although in Mampe v. Ayerst Laboratories, 548 A.2d 798, 802 (D.C. 1988), the court held that “regardless of what [the prescriber] may have read or not read, the alleged inadequacy of the warning label had no effect on his decision to prescribe [the drug].” Id. at 802. See McNeil Pharmaceuticals v. Hawkins, 686 A.2d 567, 586 n.32 (D.C. 1996) (reiterating holding).
In Rounds v. Genzyme Corp., 2011 WL 692218, at *3 (M.D. Fla. Feb. 18, 2011), aff’d, 440 Fed. Appx. 753 (11th Cir. 2011), the prescribing physician “admitted . . . that he failed to read the [drug’s] package insert.” Id. at *1. That was fatal to the plaintiff’s warning claim because “[t]he causal link between a patient’s injury and the alleged failure to warn is broken.” Id. at *2 (citation and quotation marks omitted). Under Florida’s learned intermediary rule “[w]hether the physician in fact reads the warning, or passes its contents along to the recipient of the drug is irrelevant.” Id. at *3 (quoting E.R. Squibb and Sons, Inc. v. Farnes, 697 So.2d 825, 827 (Fla. 1997)). The Eleventh Circuit reiterated, in affirming, prescribing physicians “owed a duty to [patients such as plaintiff] to read the package insert.” 440 Fed. Appx. at 756.
Similarly, in Fields v. Mylan Pharmaceuticals, Inc., 751 F. Supp.2d 1260, 1263 (N.D. Fla. 2009), since the prescriber “had never read Defendants’ label,” any inadequacies it contained “cannot form the basis of liability because the labeling formed no part of the physician’s decision to prescribe the drug, and thus were not the proximate cause of Plaintiff’s injuries.” Id. See Rydzewski v. DePuy Orthopaedics, Inc., 2012 WL 7997961, at *7 (S.D. Fla. Aug. 14, 2012) (“[the prescriber] testified that he did not read the package insert”; “it is unclear how the inclusion of additional warnings in that insert would have prevented the incident”); Kilgore v. Boston Scientific Corp., 2015 WL 5838513, at *5 (S.D.W. Va. Oct. 5, 2015) (“a physician’s failure to read the warning breaks the chain of causation because the warning would have played no role in the physician’s decision to prescribe the product”) (applying Florida law).
Outside the prescription medical product field, courts applying Florida law have repeatedly found causation lacking as a matter of law where warnings went unread. Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1525 (11th Cir. 1985) (directed verdict affirmed; plaintiff “routinely failed to read” warning information, therefore “the efficacy of additional warning language was speculative”) (applying Florida law); Clark v. ODV Holding Co., 34 So. 3d 252 (Fla. App. 2010) (“because the undisputed facts show that plaintiffs did not read the safety warning provided and, as such, cannot establish that the alleged failure to warn proximately caused their injuries”); Lopez v. Southern Coatings, Inc., 580 So. 2d 864, 865 (Fla. App. 1991) (“[w]here the person to whom the manufacturer owed a duty to warn-in this case . . . has not read the label, an inadequate warning cannot be the proximate cause of the plaintiff’s injuries”); Ashby Div. of Consolidated Aluminum v. Dobkin, 458 So.2d 335, 337 (Fla. App. 1984) (where plaintiff did not read the warnings, “any failure to warn could not, as a matter of law, be the proximate cause of plaintiff’s injuries.”); Cooper v. Old Williamsburg Candle Corp., 653 F. Supp.2d 1220, 1225 (M.D. Fla. 2009) (“[plaintiff] admits that she never read the warnings on the label. Accordingly, [plaintiff] cannot demonstrate proximate cause”); Alvarez v. General Wire Spring Co., 2009 WL 248264, at *9 (M.D. Fla. Feb. 1, 2009) (“[b]ecause [plaintiff] did not read the warnings, [he] cannot show that the failure to warn was the proximate cause of [hid] injuries”); Manion v. General Electric Co., 2007 WL 2565979, at *4 (N.D. Fla. Aug. 31, 2007) (“If a plaintiff does not read the allegedly inadequate warning label, however, the inadequacy of the warning cannot as a matter of law be a proximate cause of that plaintiff’s injuries”), aff’d, 272 Fed. Appx. 779 (11th Cir. 2008); Pinchinat v. Graco Children’s Products, Inc., 390 F. Supp.2d 1141, 1148 (M.D. Fla. 2005) (“[u]nder Florida law, plaintiff’s failure to read the warning label extinguishes proximate cause in a failure to warn claim”).
There’s not a lot of drug/device law on failure to read warnings in Georgia. In In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 711 F. Supp. 2d 1348, 1378 (M.D. Ga. 2010), the court acknowledged that, “[i]n general, causation on a failure to warn claim cannot be established unless a plaintiff’s doctor did read the product warning,” but found an issue of fact concerning reliance on “other statements” by the defendant’s sales representatives. Id. “Manufacturers are not insurers, and a manufacturer cannot be held liable for a consumer’s failure to read or to listen to understandable warnings.” Walker v. Merck & Co., 648 F. Supp. 931, 935-36 (M.D. Ga. 1986) (plaintiff signed vaccine consent form with warnings, but did not read it).
There’s a lot more general Georgia law on this point. See Henry v. General Motors Corp., 60 F.3d 1545, 1548 (11th Cir. 1995) (“[u]nder Georgia law, a product user’s failure to read an allegedly negligent warning, not the warning itself, is considered the proximate cause of an injury”); Thornton v. E.I. Du Pont De Nemours & Co., Inc., 22 F.3d 284, 289-90 (11th Cir. 1994) (“a plaintiff’s failure to read a warning . . . precludes recovery against the product’s manufacturer”) (applying Georgia law); Camden Oil Co., LLC v. Jackson, 609 S.E.2d 356, 358 (Ga. App. 2004); (“where a plaintiff does not read an allegedly inadequate warning, the adequacy of the warning’s contents cannot be a proximate cause of the plaintiff’s injuries”); Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (“failure to read instructions or printed warnings will prevent a plaintiff from recovering on a claim grounded on failure to provide adequate warning of the product’s potential risk”); Powell v. Harsco Corp., 433 S.E.2d 608, 610 (Ga. App. 1993) (“the failure of the installer to follow or even to read the installation instructions from the sales literature renders all remaining factual issues immaterial”; summary judgment granted on causation); Cobb Heating & Air Conditioning Co., Inc. v. Hertron Chemical Co., 229 S.E.2d 681, 682 (Ga. App. 1976) (“any insufficiency of the warning on the label of a product may not be the proximate cause of the [injury] when the user fails to read the label”); Parzini v. Center Chemical Co., 201 S.E.2d 808, 809 (Ga. App. 1973) (“[plaintiff] did not read the warning and therefore any inadequacy with regard to such warning would not be the proximate cause of his injuries”), vacated on other grounds, 218 S.E.2d 580 (Ga. 1975) (implied warranty); McCleskey v. Olin Mathieson Chemical Corp., 193 S.E.2d 16, 18 (Ga. App. 1972) (plaintiff “neglected to read the labels and any insufficiency in labeling could not, therefore, be considered the proximate cause”); Reeves Construction Co. v. Hayward Industries, Inc., 2019 WL 826478, at *6 (M.D. Ga. Feb. 21, 2019) (“Plaintiff cannot establish that any failure to warn was the proximate cause of its injuries because it failed to read the warnings actually provided”); Silverstein v. Procter & Gamble Manufacturing Co., 700 F. Supp.2d 1312, 1321 (S.D. Ga. 2009) (“a product user’s failure to read an allegedly negligent warning is a complete bar to a product defect failure to warn claim”); Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp.2d 1363, 1375 (S.D. Ga. 2009) (“[plaintiff’s] failure to read the warning bars this claim as a matter of law”).
Haven’t found anything for Hawaii.
The only Idaho case we found is, unfortunately, nonprecedential. In Goehring v. Target, 91 Fed. Appx 1 (9th Cir. 2004) (applying Idaho law), the court held:
The district court held that [plaintiff’s] own negligence in failing to read these warnings was the cause of the injury and that more or different warnings would not have made a difference. This Court agrees. . . . Thus the district court correctly determined that [defendant] adequately discharged its duty to warn and the grant of summary judgment to [it] was correct.
Id. at 5.
For a big state, there was relatively little prescription medical product failure-to-read causation precedent in Illinois. Most recently in Peterson v. Wright Medical Technology, Inc., 2014 WL 12539635, at *7 (C.D. Ill. Feb. 13, 2014), allegedly deficient information about a product (not the one prescribed) was held non-causal because “there is no evidence that either Plaintiff or [the prescriber] saw or relied on this brochure.” In Ashman v. SK & F Lab Co., 702 F. Supp. 1401, 1405 (N.D. Ill. 1988), the prescriber did not read the label in connection with his treatment of the plaintiff. That was fatal. “Plaintiffs offer no evidence that [the prescriber] consulted the [drug] label at the time he prescribed the [it] nor any evidence that his prior reading of the [drug] label affected his decision to prescribe [the drug].” Id. at 1405. Accord Muller v. Synthes Corp., 2002 WL 460827, at *10 (N.D. Ill. Mar. 26, 2002) (summary judgment granted on warning claim where the prescriber “denied ever reviewing these inserts, and declined either to read them or to say anything at his deposition about them”).
A plaintiff’s failure to read warnings concerning a vaccine severed the causal chain as a matter of law in Boruski v. United States, 803 F.2d 1421 (7th Cir. 1986) (applying Illinois law):
The adequacy of the disclosure, however, is irrelevant if the plaintiff, as here claimed, did not read the paragraph devoted to warning of the risks. She could not have relied to her detriment one way or the other on the information or lack of information in the form if she did not read it, or at least that part of it.
Id. at 1426 (dismissing government); see id. at 1429 (same rationale justifies summary judgment in favor of vaccine manufacturer).
Non-prescription medical product cases also recognize that failure to read a warning ordinarily precludes a finding of causation. Kane v. R.D. Werner Co., 657 N.E.2d 37, 39 (Ill. App. 1995) (“a plaintiff who does not read an allegedly inadequate warning cannot maintain a negligent-failure-to-warn action unless the nature of the alleged inadequacy is such that it prevents him from reading it”); Wielgus v. Ryobi Technologies, Inc., 2012 WL 1748156, at *7 (N.D. Ill. May 16, 2012) (“the plaintiff pressing a failure-to-warn case must show that a better warning would have prevented his injuries − a bleak prospect where the plaintiff neglected to consult the warnings at all”); McConnell v. Arrow Uniform Rental, Inc., 1999 WL 92908, at *8 (N.D. Ill. Feb. 17, 1999) (“any claim that the [warnings] were deficient fails because Plaintiff never looked at them”).
In Peters v. Judd Drugs, Inc., 602 N.E.2d 162 (Ind. App. 1992), a nurse mistakenly treated the plaintiff with the wrong drug. Id. at 163. “The nurse did not read the label on the [drug] before administering it.” Id. “The label on the [drug] clearly stated that it was for ‘external use only’.” Id. Summary judgment on the warning claim was therefore appropriate:
[T]he nurse did not read and misconstrue the label. Instead, the product was used without regard to the label. . . . No genuine issue of material fact exists as to a strict liability cause of action.
Id. at 165.
We found a similar case outside of the prescription medical product context. See Gardner v. Tristar Sporting Arms, Ltd., 2010 WL 3724190, at *6 (S.D. Ind. Sept. 15, 2010) (“absent a reading of the warnings, no causal link can exist between the alleged defect and the injury”).
We didn’t find much in Iowa. In a somewhat analogous situation, the Iowa Supreme Court held that information from a chiropractic college, allegedly available in a chiropractor’s office, couldn’t support an express warranty action because the plaintiff didn’t read it:
There is no evidence under this record that [plaintiff] read or relied on any of [defendant’s] informational material. She testified she did not read any chiropractic literature at [the doctor’s] office. Thus, such literature could not have caused her to seek chiropractic treatment. . . . To create an express warranty in favor of a person who acted without reliance on representations would distort the express warranty theory.
Moore v. Vanderloo, 386 N.W.2d 108, 112 (Iowa 1986).
A nurse’s failure to read drug labeling defeated causation as a matter of law in Wright v. Abbott Laboratories, Inc., 259 F.3d 1226 (10th Cir. 2001), under Kansas’ learned intermediary rule:
[I]t is most significant that [the nurse] failed to exercise the simple precaution of reading the label on the [drug] used for [plaintiff’s] treatment. . . . Had [the nurse] read the label on the [drug], she would have realized her mistake and [the drug] would not have been administered to [plaintiff]. Thus, [the nurse’s] failure to read the label − a basic task which she was trained to perform − was an efficient intervening cause of [plaintiff’s] injury. Had [the defendant] done anything wrong by not sending the hospital a warning, [the nurse’s] action broke the causal connection between [defendant’s] original wrong and [plaintiff’s] injury.
Id. at 1235.
A “marketing defect” claim likewise failed where the prescriber did not read anything that the defendant used in marketing the drug:
[The prescriber] has unequivocally testified that he did not review any documentation which [defendant’s] representatives gave him. . . . [The prescriber] evidently knew that [defendant] was trying to influence him and took measures to guard against such influence. Plaintiffs . . . admit that he does not read pharmaceutical marketing, advertising or promotional materials provided by any manufacturer. . . . In the final analysis, because plaintiffs’ position is unsupported by record evidence, it rests on nothing but the hope that a jury may refuse to believe [the prescriber].
Miller v. Pfizer Inc. (Roerig Div.), 196 F. Supp. 2d 1095, 1122-23 (D. Kan. 2002), aff’d, 356 F.3d 1326 (10th Cir. 2004).
The same is true for non-prescription products. In McDermed v. Ford Motor Co., 2016 U.S. Dist. Lexis 103129, at *9-10 (D. Kan. Aug. 3, 2016), plaintiff’s testimony that she “only looked at the Owner’s Manual once to change the time on the clock, and she did not recall looking at any other parts of the manual” defeated causation as a matter of law notwithstanding a heeding presumption.
Not much in Kentucky. In Gibson v. Sanofi-Aventis U.S., LLC, 2009 WL 3490454 (W.D. Ky. Oct. 27, 2009), one of several factors supporting entry of summary judgment was the plaintiff’s testimony “that she did not read any product materials which accompanied her [drug’s] prescriptions.” Id. at *5.
There is ample Louisiana authority for prescriber failure to read warnings cutting of causation. Most cases rely on the Louisiana Supreme Court’s statement in Bloxom v. Bloxom, 512 So.2d 839, 850-51 (La. 1987), that “even if an adequate warning of the particular danger in this case had been given . . ., such a warning would have been futile because [plaintiff] did not read the manual.” Id. at 850-51 (not a prescription medical product case). In Felice v. Valleylab, Inc., 520 So.2d 920 (La. App. 1987), “the absence of warning was not a cause-in-fact of [plaintiff’s] injury” because “[b]y [the prescriber’s] own testimony she admitted that she had never read the warning label on the device itself, and that she had never read the manual. An adequate warning or instruction would have been futile under the circumstances.” Id. at 926-27. A Louisiana trial court has reached a similar result:
[Plaintiff] admitted in his deposition that he did not read the entire label. Therefore, the Plaintiff wouldn’t have been aware of any “sufficient” warning had one existed. A failure to warn claim must fail because it could not have possibly been the proximate cause of Plaintiff’s damages.
Ortolano v. BDI Marketing, 2005 WL 4889720 (La. Dist. Apr. 21, 2005).
In Hall v. Elkins Sinn, Inc., 102 Fed. Appx. 846, 849-50 (5th Cir. 2004), the court similarly held:
[F]ailure to warn is just one part necessary to find the manufacturer at fault. Plaintiffs never address the second prong of causation. . . . [The prescriber’s] affidavit acknowledges that he never read the warning. . . . therefore, [defendant’s] warning (adequate or inadequate) played no role in the events leading to [plaintiff’s] injury. Even if we assume, arguendo, that the warning was inadequate, plaintiffs would be unable to show that a proper warning would have changed [the prescriber’s] decision to prescribe [the drug]. Because plaintiffs are unable to provide any evidence to support proximate and legal causation, their claim fails as a matter of law.
Id. at 849-50. See Phillips v. Stryker Corp., 2012 WL 1392988, at *3 (M.D. La. Apr. 20, 2012) (express warranty claim “defeated by [plaintiff’s] deposition testimony establishing that she did not read any literature concerning the device”; no warranty “induced” use); Dykes v. Johnson & Johnson, 2011 WL 2003407, at *5 (E.D. La. May 20, 2011) (“[the prescriber] never read the warning, and thus the warning played no role in the events leading to plaintiff’s injury”).
For non-prescription medical product cases, see Peart v. Dorel Juvenile Group, Inc., 456 Fed. Appx 446, 448 (5th Cir. 2012) (“[plaintiff] cannot show that [defendant’s] inadequate warning was the cause of her injuries, because she did not read the warnings”) (applying Louisiana law); Brown v. Hudson, 700 So.2d 932, 940 (La. App. 1997) (express warranty claim fails where “we can find no evidence that [plaintiff] read the owner’s manual”); Thomas v. Clairol Inc., 583 So. 2d 108, 111 (La. App. 1991) (“failure to read the [label information] to plaintiff was the cause of his injury”); Safeco Insurance Co. v. Baker, 515 So. 2d 655, 658 (La. App. 1987) (“additional “warnings would have been futile because [plaintiff] did not even read the instructions he had available”); Murphy v. Ford Motor Co., 2009 WL 2969905, at *2 (W.D. La. Sept. 14, 2009) (“[plaintiff] cannot rely on any alleged inadequacies in the warning . . . to meet her proximate cause burden because she admits that she did not read either warning”); Matthews v. Remington Arms Co., 2009 WL 1220541, at *3 (W.D. La. May 4, 2009) (“Plaintiffs cannot rely on the alleged inadequacies in the owner manual to meet their proximate cause burden − there is no evidence that [plaintiff] read the owner manual”); Thomas v. Genie Industries, Inc., 2008 WL 4366067, at *4 (W.D. La. Sept. 22, 2008) (“the element of causation-but for the inadequate warning” held absent where plaintiff “testified that he did not read the Operator’s Manual”).
We didn’t find anything on point in Maine.
In Lightolier, a Division of Genlyte Thomas Group, LLC v. Hoon, 876 A.2d 100 (Md. 2005), Maryland’s high court affirmed summary judgment against a warning claim where the plaintiff failed to read the defendant’s warning against doing what caused the accident.
Failure to read or follow instructions or warnings also involves conduct that may be considered negligent. . . . The cause of the injury in such cases is the failure to read or follow the adequate warnings or instructions, and not a defective product.
Id. at 110 (citation and quotation marks omitted). Thus, “failure to read or follow the product’s warnings and instructions are defenses to strict product liability.” Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1153 (Md. 2002). See Andrews v. Buckman Laboratories, Inc., 181 F.3d 86 (table), 1999 WL 321526, at *3 (4th Cir. 1999) (“failure to read the MSDS for [the product] . . . necessarily precludes any causal link between the warnings in the MSDS and [plaintiff’s] injuries”) (applying Maryland law); Clayton v. Deere & Co., 2007 WL 1875915, at *3 (D. Md. June 27, 2007) (“[plaintiff] admits that she did not read any of the warnings; thus, plaintiffs’ claims fail on the issue of proximate cause”).
No Maryland has yet found physician failure to read dispositive in a prescription medical product case. However Ames v. Apothecon, Inc., 431 F. Supp. 2d 566 (D. Md. 2006), came close. In Ames the prescriber had not read the defendant’s label, but had read the identical label of a competing drug, and thus knew about the risk in question. In granting summary judgment against the warning claim, the court cited the California rule, “[b]ecause the doctor testified that he did not read the warning label . . . before prescribing the drug to [plaintiff], the adequacy of [defendant’s] warnings is irrelevant.” Id. at 573 n.29 (quoting Motus v. Pfizer Inc., 358 F.3d 659, 661 (9th Cir. 2004) (applying California law)). Cf. Zeneca Inc. v. Shalala, 1999 WL 728104, at *9 (D. Md. Aug. 11, 1999) (“[t]o assume that health care providers would either fail to read or ignore clear warnings would call into question [the] entire scheme” of FDA labeling), aff’d, 213 F.3d 161 (4th Cir. 2000).
A Massachusetts appellate court held, in a non-prescription medical product case:
[A]ssuming that the warnings provided were inadequate, [plaintiff’s] claim fails because the summary judgment record contains no evidence that additional or more specific warnings would have prevented the accident. . . . [Plaintiff’s] deliberate indifference to the warnings set forth in the owner’s manual constituted the proximate cause of his injuries. As a result, the defendants are entitled to summary judgment as a matter of law.
Rozenvayn v. BMW of North. America, LLC, 875 N.E.2d 548 (table), 2007 WL 3132936, at *3 (Mass. App. Oct. 26, 2007).
Similarly, a federal court applying Massachusetts law has held:
[Plaintiff] admits he did not read the safety rules in the [product’s] owner’s manual, nor does he recall looking at the . . . warnings on the [product] itself. Even if the Defendants had provided a fuller warning . . . it would have made no difference. [Plaintiff] did not read the safety rules so he never would have seen the revised warnings. Because an adequate instruction would not have enhanced the Plaintiffs’ existing knowledge . . . the inadequacy of the warning did not proximately cause the … injuries.
O’Neil v. Electrolux Home Products, Inc., 2008 WL 2066948, at *8 (D. Mass. May 14, 2008) (citation and quotation marks omitted); see Wasylow v. Glock, Inc., 975 F. Supp. 370, 378-79 (D. Mass. 1996) (plaintiff’s “seeing, but not reading the warnings” were “deliberate indifference” that “constituted the cause-in-fact as well as the proximate cause of his injuries”).
We haven’t found any prescription medical product cases granting judgment under this rule in Massachusetts.
Michigan law is favorable on prescriber failure to read as a defense, although since Michigan doesn’t see much pharmaceutical litigation anymore since the state’s statute presuming FDA-compliant warnings adequate as a matter of law, many of the decisions are relatively old. In Formella v. Ciba-Giegy Corp., 300 N.W.2d 356 (Mich. App. 1981), a directed verdict was affirmed because the prescriber “never . . . read the PDR” while treating the plaintiff. Id. at 358. The court:
Conclude[d] from his testimony that the negligence of [the prescriber] is the intervening independent and sole proximate cause of [plaintiff’s] injuries. Even if [defendant] had been negligent in overpromoting the use of the drug . . ., that negligence was not the proximate cause of [plaintiff’s] injury.
* * * *
[T]he fact [the prescriber] failed to read the package inserts and PDR negates any possible negligence on the part of [defendant] in not emphasizing the hazards in those publications. Again, we find that [the prescriber’s] negligence is the intervening, independent and sole proximate cause of [plaintiff’s] illness.
Id. at 358-59. See Cronin v. Boots Pharmaceuticals, Inc., 1996 WL 149173, at *2 (Mich. App. Feb. 16, 1996) (“Given the lack of evidence that [the prescriber] ever consulted or relied on defendants’ package insert warnings in treating plaintiff, it cannot be said that those warnings played any role in the doctor’s decision to prescribe [the drug] to plaintiff. Thus, the trial court properly concluded that, as a matter of law, defendants’ conduct could not be a proximate cause of plaintiff’s injury”); Dunn v. Lederele Laboratories, 328 N.W.2d 576, 583 (Mich. App. 1982) (where prescriber “quit reading the inserts and PDR reprints . . ., further notice by way of drug labels would not have altered the doctor’s conduct”).
Federal courts have reached similar results in prescriber failure to read cases. In Schindler v. Lederle Laboratories, 725 F.2d 1036, 1039 (6th Cir. 1983), a vaccine prescriber admittedly “did not read [defendant’s] package insert accompanying the [vaccine] given to [minor plaintiff],” id. at 1039, and thus did not have the benefit of updated information:
After hearing plaintiffs’ proof, the district judge found that even if it were assumed that there was a duty owed by each defendant to the plaintiffs and that each defendant breached its duty, the evidence presented would not support a finding that there was a proximate causal connection between the breaches of duty and the injuries sustained. The district judge had the benefit of appellate opinions of the Michigan courts which had considered the same issues and had pronounced the law of Michigan on this subject matter.
Id. (citing Dunn and Formella). Likewise in William Beaumont Hospital v. Medtronic, Inc., 2010 WL 3998103 (E.D. Mich. Oct. 8, 2010), the defendant’s allegedly negligent delivery of the wrong product was negated by the negligence of the plaintiff hospital’s nurse in repeatedly failing to read product labels:
Defendant’s ostensible negligence had come to rest without injury. . . . It had been extinguished by the superseding gross negligence of failing to read even the label of the product about to be used in the presumably routine medical procedure. . . . [the nurse] never verified the receipt of the kits, nor did she read the boxes. . . . [She] selected the [device] for the [medical] procedure without ever once reading the label.
. . . Although this court does not believe the courts of Michigan would go so far as to determine that failure to read warning labels constitutes a superseding cause in all cases, they have established that failure to heed clear warnings can be a superseding cause.
Id. at *5-6. See Avendt v. Covidien, Inc., 2017 WL 2868487, at *28 (E.D. Mich. July 5, 2017) (the surgeon “did not read the [product] IFU before deciding to implant it or leave it in [plaintiff] because he felt that it was unnecessary – he felt that his knowledge of the product was such that he did not need to consult the IFU. Under these circumstances no failure to warn claim will lie.”).
For non-prescription medical product cases in Michigan, see Coy v. Richard’s Industries, Inc., 428 N.W.2d 734, 737 (Mich. App. 1988) (“plaintiff’s conduct constituted a superseding cause of plaintiff’s injuries” because he “felt that he did not need to consult [defendant’s] training manual for information”); State Farm & Casualty Co. v. Parks Corp., 219322, 2001 WL 692011, at *4 (Mich. App. Mar. 30, 2001) (“[plaintiff] also admitted that he did not read the warning label on the [product]. Thus, the adequacy of the warning had no impact on [plaintiff’s] use of the product”); Fischer v. Product Tool Supply Co., 2000 WL 33409144, at *1 (Mich. App. Aug. 11, 2000) (“[plaintiff] could not establish that he would have used the product differently had the warning . . . been more expansive because it was undisputed that he did not read the label”); Swartz v. Procter & Gamble Manufacturing Co., 2018 WL 2239558, at *7 (E.D. Mich. May 16, 2018) (“[b]ecause [plaintiff] did not read the relevant warnings, she cannot establish the required proximate cause element of her failure-to-warn claim”); Eiben v. Gorilla Ladder Co., 2013 WL 1721677, at *17 (E.D. Mich. Apr. 22, 2013) (no causation where “Plaintiff testified that he did not read the warnings or the owner’s manual before using the [product]”); Nordman v. OMGA S.p.A., 2006 WL 2830026, at *6 (W.D. Mich. Sept. 29, 2006) (“defendants cannot be held liable for failing to warn plaintiff about the dangers of operating the [product] when she did not read the warning attached to the [product]”); Fleck v. Titan Tire Corp., 177 F. Supp.2d 605, 617 (E.D. Mich. 2001) (“plaintiff admitted that he never read the warnings on the [product] label”; summary judgment granted against warning claim).
In Minnesota, a prescriber’s failure to read warnings renders their inadequacy non-causal as a matter of law. In Johnson v. Zimmer, Inc., 2004 WL 742038, at *9-10 (D. Minn. March 31, 2004), summary judgment was entered in this situation:
[W]here an adequate warning could not have prevented a plaintiff’s injuries, causation does not exist as a matter of law. . . . [The prescriber] testified in deposition that he did not either see or share with [plaintiff] any warnings that were included in the [device’s] package insert. [The prescriber] also testified that he had never, in any context, seen the warnings provided with the [device]. Thus, regardless of any inadequacy of the warnings and instructions included with [the device], causation does not exist as a matter of law.
Id. at *9-10 (citations omitted). Warnings the plaintiff could not have read could not prevent summary judgment in Cornelison v. Tambrands, Inc., 710 F. Supp. 706, 711 (D. Minn. 1989) (affidavit “fails to show the existence of a material factual dispute because there is no evidence that plaintiff used [product] from boxes which contained the labels or inserts discussed in the affidavit”). See In re Mentor Corp., 2016 WL 4732934, at *4 (M.D. Ga. Sept. 9, 2016) (no causation where plaintiff “pointed to no evidence that [the prescriber] read the warnings [defendant] did provide”) (applying Minnesota law); In re Zyprexa Products Liability Litigation, 2009 WL 5216930, at *12 (E.D.N.Y. Dec. 21, 2009) (no causation where prescriber “did not always read labels and did not rely on [defendant’s] messages and warnings”) (applying Minnesota law).
The same rule applies to cases involving non-prescription products. Johnson v. Niagara Machine & Tool Works, 666 F.2d 1223, 1225 (8th Cir. 1981) (“an issue as to the adequacy of a warning necessarily presupposes that the operator has read the warning”) (applying Minnesota law); Lammle v. Gappa Oil Co., 2009 WL 67438, at *8 (Minn. App. Jan. 13, 2009) (“[a]bsent a reading of the warning, there is no causal link between the alleged defect and the injury”); Yennie v. Dickey Consumer Products, Inc., 2000 WL 1052175, at *2 (Minn. App. Aug. 1, 2000.) (“[i]n a failure-to-warn case, when a warning label is affixed to the product, absent a reading of the warning, there is no causal link between the alleged defect and the injury“); J & W Enterprises v. Economy Sales, Inc., 486 N.W.2d 179, 181 (Minn. App. 1992) (“an issue as to the adequacy of a warning necessarily presupposes that the operator has read the warning”); Marko v. ALCOA, 1994 WL 615004, at *2 (Minn. App. Nov. 8, 1994)(“[defendants’] failure to provide a more detailed warning . . . could not have caused [plaintiff’s] injuries because it was his practice not to read warnings and he conceded that he did not read the warnings actually provided”); CIC Partners v. Sunbeam Products, Inc., 2012 WL 124982, at *12-13 (D. Minn. Jan. 17, 2012) (summary judgment on warning claim granted where “[plaintiff] testified that her husband did not read the instructions or information that came with [the product] and she cannot remember if she did”).
Unread, but allegedly inadequate warnings are noncausal in Mississippi. In McSwain v. Sunrise Medical, Inc., 689 F. Supp. 2d 835 (S.D. Miss. 2010), the plaintiff failed to read the user’s manual for a medical device:
[Plaintiff] cannot prove that the manual’s inadequate warnings proximately caused his injury because [ha] voluntarily made the decision to not read the manual. Therefore . . . the contents or omissions within the unread manual could not proximately cause the injuries sustained by [plaintiff]. [He] has not presented any evidence that [defendant] somehow prevented or discouraged the rider from reading the manual. In fact, the cover of the manual clearly stated that the rider should read the entire manual before use.
Id. at 844.
Likewise, In re C.R. Bard, Inc., Pelvic Repair System Products Liability Litigation, 2013 WL 5591948 (S.D.W. Va. June 4, 2013), the MDL court, applying Mississippi law, held:
[The prescriber] simply never read the [instructions for use]. . . . Accordingly, even drawing the facts and inferences in the light most favorable to the plaintiff, as the standard for a motion for summary judgment requires, I cannot find that the plaintiff has offered sufficient evidence to meet her burden of showing that additional or different warnings would have prevented [the prescriber] from implanting the [device] into her. Simply put, because [the prescriber] did not review the IFU, no amount of warnings contained in it would have caused [him] to act any differently.
Id. at *6 (citations omitted).
Several Mississippi non-drug/device cases make the same point. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 452-53 (Miss. 2015) (judgment n.o.v. ordered where plaintiff “proffered no testimony whatsoever that he . . . read the instructions”; “where a plaintiff alleges that the warnings provided were inadequate, the plaintiff must show he relied on those warnings”); Palmer v. Volkswagen of America, Inc., 904 So.2d 1077, 1084 (Miss. 2005) (“[t]he presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiff’s damages”); Wolf v. Stanley Works, 757 So. 2d 316, 322-23 (Miss. App. 2000) (“[plaintiffs] testified that they did not read the existing warning”; “there was no evidence that the desired warning would have had any causative impact”); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 758 (5th Cir. 1979) (where “[n]o evidence . . . showed that [decedent] had seen either the accurate or the inaccurate manual” plaintiff had not established “proximate cause”) (applying Mississippi law); Wallace v. Ford Motor Co., 2013 WL 3288435, at *4 (S.D. Miss. June 28, 2013) (where plaintiff “never read the owner’s manual,” “a warning in the owner’s manual . . . could not possibly have given him additional information that he would have acted upon to avoid his injuries”); Previto v. Ryobi North America, Inc., 766 F. Supp. 2d 759, 768 (S.D. Miss. 2010) (plaintiff “did not read the . . . warnings within the owner’s manual”; plaintiff “has not established that the failure to include [an additional] warning on the [product] proximately caused his injury”).
Missouri law holds that a prescribing physician’s failure to read the relevant warnings, that failure is fatal to the plaintiff’s proof of causation in a warning case:
[The prescriber] did not read either the instruction manual for, or instructional label on, the [device]. . . . The adequacy of the instructions accompanying the [device] in this case, therefore, made no difference in the outcome of [plaintiff’s case] because [the prescriber] did not read those materials. . . . [The prescriber] did not read and misconstrue the instructions on use of the [device] in this case, and [plaintiffs] have not complained that the format or placement of the instructions impeded the communication of those instructions. With this backdrop, then, it is undisputed that [the prescriber] used the [the device] without regard to the instruction manual and the instruction label on the machine and, thus, [defendant’s] alleged failure to warn or alleged inadequate warning was not the proximate cause of [plaintiff’s] injuries.
Johnson v. Medtronic, Inc., 365 S.W.3d 226, 232-33 (Mo. App. 2012) (citations omitted).
General Missouri law on causation is similar. In Nelson v. Ford Motor Co., 150 F.3d 905, 907 (8th Cir. 1998), the plaintiff “testified that he had not consulted the existing warnings because he thought he knew how to use the [product] properly. Id. at 970. Therefore dismissal of a warning claim was proper because “it was not shown that modified or additional warnings would likely have prevented the accident.” Id. See Kay v. Sunbeam Products, Inc., 2010 WL 2178506, at *4 (W.D. Mo. May 27, 2010) (where plaintiffs “do not dispute that they did not pay attention to the warnings listed in the manual,” summary judgment on their warning claim was required); Ball v. Bic Corp., 2000 WL 33312192, at *3 (E.D. Mo. Feb. 8, 2000) (“[plaintiff] testified that he saw the label on the [product], but he did not read it. Accordingly, the Court finds that plaintiff has not shown that any additional warnings would have altered the behavior of those involved in the accident”).
Under Montana law, in Oakberg v. Zimmer, Inc., 211 Fed. Appx. 578 (9th Cir. 2006), the court affirmed the district court’s ruling that the prescribing physician’s failure to read the disputed medical device warnings defeated causation:
[T]o survive a motion for summary judgment for failure to warn under Montana law, a plaintiff must raise an issue sufficient to show a causal link between the lack of a warning and the accident and injuries. . . . Here, it is undisputed that neither [the prescriber] nor [plaintiff] read the [device’s] package insert. Accordingly, even if the additional warning were printed in the package insert, they would not have been read. [R]egardless of any inadequacy of the warnings and instructions included with [the device], causation does not exist as a matter of law where the implanting surgeon did not read the package insert. . . . Therefore, we affirm the district court.
Id. at 581.
In an indemnity action under Nebraska law, Brassette v. Burlington Northern, Inc., 687 F.2d 153 (8th Cir. 1982) held that a product liability defendant’s “failure to warn . . . was not the proximate cause of the accident” where that defendant’s “informational plate . . . was covered with road grime” so that the injured worker did not notice or read it. Rather, the worker’s employer’s “failure to maintain the plate amounted to a supervening cause.”
In Schmidt v. C.R. Bard, Inc., 2013 WL 3802804 (D. Nev. July 22, 2013), “Plaintiff . . . offered no evidence that [the prescriber] ever reviewed the warnings that accompanied the product.” Id. at *2. Applying Nevada law, the court found that a prescriber’s not reading the device warnings in question defeated causation:
Plaintiff’s implied warranty claim fails because Plaintiff has not presented evidence of proximate cause. Indeed the evidence shows that [the prescriber] reviewed no warnings which accompanied the . . . product at all, and there is no evidence that [he] would have done anything differently had the warnings accompanying Defendants’ product been different.
Id. In Moretti v. Wyeth, Inc., No. 2:08-CV-396 JCM (GWF), slip op. (D. Nev. Dec. 21, 2010), the court granted summary judgment against a warning claim in light of “the undisputed fact that the plaintiff did not read the warning, and admittedly never even looked at it, which breaks the requisite link to prove proximate cause.” Id. at 3. The court later reconsidered that ruling, but only because plaintiff came forward with evidence that “she did in fact read the actual bottle,” Moretti v. Wyeth, Inc., 2011 WL 2580356, at *3 (D. Nev. June 28, 2011), so the underlying legal proposition remains valid.
We’ve already discussed New Hampshire precedent that a prescriber’s failure to read a warning cuts off causation. Bartlett v. Mutual Pharmaceutical, supra, 731 F. Supp.2d 135; see also Bartlett v. Mutual Pharmaceutical Co., 760 F. Supp. 2d 220, 229 (D.N.H. 2011) (“[plaintiff] could not prove that any defect in the warning caused her injuries because her doctor admittedly never read the warning”), aff’d on other grounds, 678 F.3d 30 (1st Cir. 2012), rev’d on other grounds, 133 S. Ct. 694 (2012).
We haven’t found anything else.
Interestingly, New Jersey law on failure to read is much more forceful in the prescription medical product area than elsewhere. The New Jersey Supreme Court recognized in Perez v. Wyeth Laboratories Inc., 734 A.2d 1245, 1261 (N.J. 1999), that “a manufacturer who fails to warn the medical community of a particular risk may nonetheless be relieved of liability under the learned intermediary doctrine if the prescribing physician . . . did not read the warning at all.” Id. at 1261. A prescriber who does not read warnings is the “superseding or intervening cause that breaks the chain of liability between the manufacturer and the [plaintiff].” Id. In a case with a somewhat odd procedural posture, the New Jersey Supreme Court summarily reversed in Strumph v. Schering Corp., 626 A.2d 1090 (N.J. 1993), explicitly on the basis of the dissenting opinion in the decision it reviewed. That decision, Strumph v. Schering Corp., 606 A.2d 1140, 1148 (N.J. Super. App. Div. 1993) (dissenting opinion), was a no-causation ruling based on a prescriber’s failure to read. The prescribers had “unequivocally denied that defendants’ warnings in the Physician’s Desk Reference (PDR) had any effect on their decisions to prescribe [the drug] for plaintiff.” Id. at 1148 (dissenting opinion). One prescriber “had not even read the PDR entry.” Id. Therefore the dissent (as expressly adopted by the New Jersey high court) found no causation:
[M]ost jurisdictions which have considered the question have concluded that a defendant drug manufacturer may not be held liable for an alleged inadequate warning where the only evidence on the issue of causation is the prescribing doctor’s unequivocal testimony that his or her decision to prescribe the drug was not affected by the warning. Therefore, I would conclude that plaintiffs failed to present any evidence from which a jury could reasonably find that the alleged inadequacy of defendant’s warnings regarding [the drug] affected the decision of plaintiff’s doctors to prescribe the drug for plaintiff and that the trial court properly granted summary judgment.
Id. at 1150 (citations omitted).
Likewise, in Baker v. APP Pharmaceuticals LLP, C.A. No. 09-05725 (JAP), 2012 WL 3598841, at *9-10 (D.N.J. Aug. 12, 2012), the prescriber “testified in his deposition that he does not read the label of drugs he prescribes often, which includes [the drug at issue].” Id. at *9. Citing Perez, the court held “a different warning would not have made a difference in [plaintiff’s] treatment or outcome because [the prescriber] would not have reviewed it.” Id. Accord Appleby v. Glaxo Wellcome, Inc., 2005 WL 3440440, at *5-6 (D.N.J. Dec. 13, 2005) (“there is every indication that Plaintiff’s doctor . . . did not read package inserts or listen to drug representatives”; “Plaintiff provided no evidence that would permit a reasonable jury to find that deficient warnings proximately caused her alleged injury”); In re Alloderm Litigation, 2015 WL 5022620, at *3 (New Jersey Super. Law Div. Aug. 14, 2015) (“a defendant will not be liable if ‘the prescribing physician either did not read the warning at all, and thus did not rely on any information from the manufacturer in prescribing the product.’”) (quoting Perez, 734 A.3d at 761), id. at *8 (dismissing warning claim because the prescriber “testified that he did not read any Instructions For Use”).
In Silva v. SmithKline Beecham Corp., 2013 WL 4516160 (N.M. App. Feb. 7, 2013) (unpublished), the court affirmed summary judgment against a prescription drug warning claim on causation grounds where the prescriber “could not recall receiving any literature from [defendant] regarding [the drug] or ever having read the [drug’s] prescribing information.” Id. at *3. That’s all the good law we found.
In Banker v. Hoehn, 718 N.Y.S.2d 438, 440 (N.Y. App. Div. 2000), “[the prescriber’s] failure to review the warnings given in the operation’s manual for the [device] established that any failure to warn on its part did not proximately cause the injury to the [plaintiff]” supported a finding of no causation. “[T]he absence of [the prescriber’s] reviewing any operating manuals for the [device] . . . was itself an intervening cause severing the causal connection between defendants’ alleged failure to warn and the injury.” Id. at 441. Similarly, in Sosna v. American Home Products, 748 N.Y.S.2d 548 (N.Y.A.D. 2002), “plaintiff’s deposition testimony was clear that he had not read defendant manufacturer’s warnings until after he had stopped using its product and sustained the complained-of injury.” Id. at 549. The court therefore affirmed summary judgment (in a brief opinion) because the plaintiff’s only challenge was to the “substantive” language of the warnings. Id.
Similar rulings exist in a plethora of non-prescription medical product cases. See Mussara v. Mega Funworks, Inc., 952 N.Y.S.2d 568, 572 (N.Y.A.D. 2012) (“any failure to warn was not a proximate cause of the alleged injuries, as the injured plaintiff admitted that he . . . failed to read the rest of the warnings”); Reis v. Volvo Cars of North America, Inc., 901 N.Y.S.2d 10, 13 (N.Y.A.D 2010) (“it is immaterial how prominent or conspicuous any warning in the owner’s manual might have been because it is undisputed that [plaintiff] did not read the manual and would not have been likely to read it because he was familiar with [product]”); Perez v. Radar Realty, 824 N.Y.S.2d 87, 89 (N.Y.A.D. 2006) (“Plaintiff testified that he made no attempt to read or to obtain assistance in reading the product label and, accordingly, the alleged labeling deficiency could not have caused the complained-of harm”); Estrada v. Berkel Inc., 789 N.Y.S.2d 172, 174 (N.Y.A.D. 2005) (“in this instance a warning would have been merely superfluous since the infant plaintiff could not read. As in any products liability case, the plaintiff in an action premised on inadequate warnings must prove causation”); Guadalupe v. Dracket Products Co., 676 N.Y.S.2d 177, 178 (N.Y.A.D. 1998) (plaintiff “made no attempt to read the label”; “any purported inadequacies in the product’s labeling were not a substantial factor in bringing about her injury”); Rodriguez v. Davis Equipment Corp., 651 N.Y.S.2d 528, 529 (N.Y.A.D. 1997) (“the injured plaintiff’s admission that he was not looking for warnings shows that the alleged lack of a warning was not a substantial factor in causing his injuries”); Cuntan v. Hitachi KOKI USA, Ltd., 2009 WL 3334364, at *15 (E.D.N.Y. Oct. 15, 2009) (“[u]nder New York law, if a plaintiff admits that he failed to read a product’s warnings, he cannot establish that the substantive language of the warnings caused his injury”); Smallwood v. Clairol, Inc., 2005 WL 425491, at *2 n.5 (S.D.N.Y. Feb. 18, 2005) (“where the undisputed facts show that the plaintiff did not bother to read the manufacturer’s existing warnings prior to using the product, plaintiff cannot establish the critical element of proximate cause”); Anderson v. Bungee Int’l Manufacturing Corp., 44 F. Supp. 2d 534, 539 (S.D.N.Y. 1999) (“the essential element of causation is missing. [Plaintiff] admits that he did not read the warning on the package”).
The issue has arisen several times recently in mesh cases applying North Carolina law. In Carlson v. Boston Scientific Corp., the Fourth Circuit affirmed summary judgment where plaintiff “cited zero evidence establishing that either she or [her prescriber] so much as read the allegedly inadequate warning.” 856 F.3d 320, 324 (4th Cir. 2017). Similarly, in Mathison v. Boston Scientific Corp., 2015 WL 1956355, at *4 (S.D.W. Va. April 29, 2015), summary judgment was granted under North Carolina law where the learned intermediary did not read the allegedly inadequate warnings. “Fatal to [plaintiff’s] negligent failure to warn claim, if [prescriber] did not review the DFU [directions for use], no amount of warnings contained therein would have caused him to act differently.” Id. at *10. Accord Felan v. Boston Scientific Corp., 2015 WL 2137180, at *4 (S.D.W. Va. May 7, 2015) (“the record is void of any evidence that would permit a reasonable juror to infer that [the prescriber] read or relied on the” warning); Hembree v. Boston Scientific Corp., 2015 WL 2137190, at *4 (S.D.W. Va. May 7, 2015) (same); Frankum v. Boston Scientific Corp., 2015 WL 1956218, at *6 (S.D.W. Va. April 29, 2015) (“the facts here demonstrate, indisputably, that [the prescriber] failed to rely on the [warnings]”), reconsideration denied after remand, 2015 WL 3514327 (W.D.N.C. June 4, 2015) (all applying North Carolina law).
Beyond these mesh cases, the most pertinent decision is Sparks v. Oxy-Health, LLC, 134 F. Supp.3d 961 (E.D.N.C. 2015), involving a prescription medical device being used at home by the patient’s family. The warning claim failed because of “the [plaintiff’s] family’s collective failure to read the Reference Manual sold with the [product].” Id. at 994. Contending that a warning should have been on the product itself didn’t help.
[T]here is no evidence to suggest that [plaintiffs] would have followed any additional on-chamber warning. . . . Accordingly, because [decedent’s] family did not read the Reference Manual or follow existing warnings, and because there is no credible evidence to suggest an on-chamber warning would have changed [anyone’s] behavior, plaintiffs cannot establish causation as a matter of law.
Id. at 995. Similarly, in Edwards v. ATRO SpA, 891 F. Supp. 1074 (E.D.N.C. 1995), supplemented on other grounds, 891 F. Supp. 1085 (E.D.N.C. 1995), the court held, that since the plaintiff “did not read the warning label . . . the best crafted manual, warning, or instruction imaginable would have been a futile measure.” Id. at 1078.
In Harris v. McNeil Pharmaceutical, 2000 WL 33339657, at *4 (D.N.D. Sept. 5, 2000), the plaintiff was himself a physician, who had become addicted to the defendant’s drug. The plaintiff/physician’s failure to read relevant drug warnings was fatal to his claims:
Case law supports the proposition that a physician’s failure to read the warnings, including package inserts and the Physician Desk Reference, essentially negates any possible liability on the part of [the manufacturer]. . . . [Plaintiff] testified that he does not recall reading the package insert, other than to scan its contents for dosage information. . . . Proximate cause is such an [essential] element. It is this court’s opinion that [plaintiff’s] failure to review the contents of the package insert . . . provided to him is fatal to his claims under all theories of liability.
Id. at *4-5 (citations and quotation marks omitted).
Otherwise, there’s not much in North Dakota law. In Morrison v. Grand Forks Housing Authority, 436 N.W.2d 221, 228 (N.D. 1989), failure to read a product warning, and then using the product contrary to such warning, was held to be product misuse.
Ohio is home to one of the seminal failure-to-read cases, Oppenheimer v. Sterling Drug, Inc., 219 N.E.2d 54, 58-59 (Ohio App. 1964). In Oppenheimer, “there [wa]s nothing to indicate that the doctor relied upon any information furnished by the defendant.” The prescriber “specifically said ‘I don’t recall specifically reading the precautions’.” Id. at 58. The prescriber’s failure to read was held fatal to the plaintiff’s warning case:
Plaintiff’s doctor failed to observe the warnings set out in Physicians’ Desk Reference, if he ever saw them. His recollection was not clear as to the readings in Physicians’ Desk Reference and defendant’s literature circulated to physicians and druggists. It can hardly be said that he relied upon anything produced by the defendant or found in the general literature. . . . [Other things] can as well be said to have caused the injury to plaintiff of which she complains as any possible negligence of the defendant.
Id. at 59.
In Fulgenzi v. PLIVA, Inc., 140 F. Supp.3d 637 (N.D. Ohio 2015), the court granted summary judgment against a generic drug “failure to update” claim that survived preemption because none of the plaintiff’s prescribers had read the allegedly inadequate generic labeling at issue. “The undisputed facts in the record establish that plaintiff’s physicians did not ever read, let alone rely on, [defendant’s] inadequate . . . warning.” Id. at 649.
In Pettit v. Smithkline Beecham Corp., 2012 WL 3466978 (Pa. C.P. Philadelphia Co. June 13, 2012), the court applied Ohio law and found no causation as a matter of law where “[the prescriber] repeatedly testified he could not recall ever reviewing the [drug’s] label or PDR.” Cf. In re Meridia Products Liability Litigation, 328 F. Supp. 2d 791, 813 (N.D. Ohio 2004) (“[d]efendants conveyed the warning on a product insert − something that one may reasonably assume that physicians will read. After all, if physicians fail to read the insert, they may well fall below their duty of care to patients”) (citation and footnote omitted), aff’d, 447 F.3d 861 (6th Cir. 2006).
The same proposition has been followed in Ohio in non-drug/device decisions: In Wade v. Diamant Boart, Inc., 179 Fed. Appx. 352, 356 (6th Cir. 2006), the court held:
The district court found that Plaintiff’s failure to read and heed the warnings provided necessarily precluded Plaintiff from being able to establish that the alleged failure to adequately warn was the proximate cause of his injuries. The district court’s ruling was correct. . . . Ohio law is clear that where a plaintiff fails to read and/or follow clear instructions, and where the accident would not have happened had the plaintiff followed the instructions, the plaintiff’s failure to adequately warn claim fails for lack of the requisite proximate cause. Since Plaintiff did not read the operator’s manual, he would not have been aware of any additional or more specific warnings even if they have been provided. Consequently, any such failure to adequately warn did not cause Plaintiff’s injury.
Id. at 355-56 (citations and footnote omitted). See Woeste v. Washington Platform Saloon & Restaurant, 836 N.E.2d 52, 57 (Ohio App. 2005) (defendant “cannot be subjected to liability for [plaintiff’s] failure to read the warning provided”); Webb v. Smith, 1998 WL 801944, at *5 (Ohio App. Nov. 18, 1998) (“[b]ecause nobody read or relied on the warning, any alleged inadequacy in the warning was not the proximate cause for plaintiff’s injury”); Phan v. Presrite Corp., 653 N.E.2d 708, 711 (Ohio App. 1994) (“[plaintiff] has presented no evidence that the alleged inadequacy of the warning was the proximate cause of [his] injuries” because “neither [plaintiff] nor any [coworker] read the warning”); Broyles v. Kasper Machine Co., 865 F. Supp.2d 887, 899 (S.D. Ohio 2012) (“[m]ultiple Ohio courts have held that where a plaintiff fails to read or follow clear instructions and where the accident would not have happened had the plaintiff followed the instructions, the plaintiff’s strict products liability and negligence claims will fail for lack of the requisite proximate cause”), aff’d, 517 Fed. Appx 345 (6th Cir. 2013); Mohney v. USA Hockey, Inc., 300 F. Supp. 2d 556, 578 (N.D. Ohio 2004) (“assuming arguendo that the warnings in this case . . . were inadequate, . . . a claim of a failure to warn fails where the evidence directly establishes that a plaintiff did not read the warnings”), aff’d, 138 F. App’x 804, 816 (6th Cir. 2005) (“[plaintiff’s] admitted indifference to safety warnings rebutted any proximate cause”); McConnell v. Cosco, Inc., 238 F. Supp.2d 970, 978 (S.D. Ohio 2003) (“the inadequacy of a warning cannot be the proximate cause of a plaintiff’s injuries if the user of the product failed to read the warnings accompanying the product. Even if such a warning were adequate, it could not prevent the harm if the user did not read the warning.”); In re Welding Rod Civil Actions Products Liability Litigation, 2007 WL 6226037 (Ohio C.P. Cuyahoga Co. June 26, 2007). (“when a plaintiff testifies that he or she did not read a warning label, proximate cause cannot be established and the claim must fail”).
“Oklahoma law does not require a manufacturer to foresee that professionals who use its product will fail to read its warnings.” McPhail v. Deere & Co., 529 F.3d 947, 958 (10th Cir. 2008). See Hutchins v. Silicone Specialties, Inc., 881 P.2d 64, 67 (Okla. 1993) (“[d]efendant was not required to foresee that professional [persons] would fail to read its warnings”); Smith v. Sears Roebuck & Co., 232 Fed. Appx. 780, 784 (10th Cir.2007) (“[w]here, as here, the undisputed evidence is that [plaintiff] never read the Owner’s Manual, she cannot establish that the failure to warn caused the injury”) (applying Oklahoma law); Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1333 (10th Cir. 1996) (that plaintiff “was in a hurry and did not look at the label” negated heeding presumption) (applying Oklahoma law); Britton v. Electrolux Home Products, Inc., 2006 WL 2934271, at *5 (W.D. Okla. Oct. 13, 2006) (“undisputed evidence that [plaintiff] did not read any of the warnings” entitled defendant to summary judgment on “the essential element of causation for their failure to warn claim”).
Thus, in Prince v. B.F. Ascher Co., 90 P.3d 1020 (Okla. Civ. App. 2004), evidence that the plaintiff ignored warnings to use an OTC product as a “stimulant” warranted summary judgment. “Manufacturers, however, are not required to foresee that consumers will fail to read the product’s warnings and then use the product in a manner that the instructions expressly warn against.” Id. at 1027. See Dobbs v. Wyeth Pharmaceuticals, 848 F. Supp. 2d 1335, 1338, 1341 (W.D. Okla. 2012) (prescriber’s testimony that she “didn’t have time to read” promotional material barred fraud demonstrated that plaintiff had “no evidence to support a causal connection between the claimed misrepresentation and [the alleged injuries]”).
Oregon is not a favorable jurisdiction for prescriber failure to read as a causation defense, but in Canady v. Ortho-McNeil Pharmaceutical, Inc., 2014 WL 4930675 (N.D. Ohio Oct. 1, 2014), the court applied Oregon law and entered summary judgment where the plaintiff “did not read the information on the [product] boxes, packaging materials, package insert, or detailed patient labeling.” Id. at *1. “Causation cannot be established when a plaintiff failed to read or ignored the alleged inadequate warning that specifically cautioned the precise risk at issue.” Id. at *3. Canady relied upon Bartlett v. MacRae, 635 P.2d 666, 667-68 (Or. App. 1981), in which the court affirmed that causation was lacking where the plaintiff had used a product without bothering to read warnings.
In Kline v. Zimmer Holdings, 2015 WL 4077495 (W.D. Pa. July 6, 2015), aff’d, 628 Fed. Appx. 121 (3d Cir. 2016), the plaintiff’s implanting surgeon “admitted that he did not read the package insert that accompanied the device, because he never reads them for any device he implants.” Id. at *7. That testimony was fatal to the plaintiff’s warning claim:
Thus, even if the warning in this case were insufficient, it would not have made a difference. Other courts have come to the same conclusion[.]
Id. at *25 (citations omitted).
Similarly, in Mazur v. Merck & Co., 767 F. Supp. 697 (E.D. Pa. 1991), aff’d, 964 F.2d 1348 (3d Cir. 1992), a nurse’s failure to read allegedly inadequate vaccine warnings warranted entry of summary judgment for lack of causation:
It seems [plaintiffs] contend that unless there is affirmative proof the learned intermediary actually read the package circular, the vaccine manufacturer must be held liable. No case supports this contention; the law and common sense are just the opposite. The vaccine manufacturer is not responsible for how the learned intermediary chooses to do her job. . . [Defendant] is not vicariously liable for [the nurse’s] failings, if there were any. That [the nurse] may not have seen the package circular does not implicate [defendant]. . . . To suggest [defendant] had to have someone present at each [use of the product] to double-check that the appropriate precautions were taken is ludicrous.
Id. at 712-13. See also Ferrara v. Berlex Laboratories, Inc., 732 F. Supp. 552, 553, 555 (E.D. Pa. 1990) (prescriber “did not consult the warning inserts” and his “failure to remember” the relevant warnings “was the causal link”), aff’d without opinion, 914 F.2d 242 (3d Cir. 1990).
There are numerous Pennsylvania trial court opinions granting summary judgment where the prescriber did not read relevant drug warnings. For example, in Pettit v. Smithkline Beecham Corp., 2012 WL 3466978 (Pa. C.P. Philadelphia Co. June 12, 2012), “[the prescriber] repeatedly testified he could not recall ever reviewing the [drug’s] label or PDR.” Id. Summary judgment was appropriate because “when a physician fails to read or rely on a drug manufacturer’s warnings, such failure constitutes the intervening, independent and sole proximate cause of the plaintiffs injuries, even where the drug manufacturer’s warnings were inadequate.” Id. See Nelson v. Wyeth, 2007 WL 4261046 (Pa. C.P. Dec. 5, 2007) (“[defendant’s] alleged failure to adequately warn could not have been the factual cause of [plaintiff’s injuries] since the prescribing physician did not read nor rely upon any of [defendant’s] warnings as contained in the label accompanying the prescription drug”); Berry v. Wyeth, 2005 WL 1431742, at *5 (Pa. C.P. June 13, 2005) (summary judgment granted based on failure to establish proximate causation when one physician failed to read the drug’s labeling or the information in the PDR and the plaintiff failed to secure testimony from another prescribing physician that he had relied on the labeling to prescribe the drug to plaintiff).
These decisions are reflective of general Pennsylvania law. In Sherk v. Daisy-Heddon, a Div. of Victor Comptometer Corp., 450 A.2d 615 (Pa. 1982), the court decided:
[Plaintiff] cannot prevail on the theory that if the parents of [the product user] had known of the [product’s risks], they would not have permitted [the user] to have possession of the [product] and thus be in a position to misuse it. . . . When the [product] arrived in the mail, [the mother] did not open the box or read the instructions. Instead, the box “was put away,” and [she] directed her sons that the gun was not to be used until their father had instructed them in its use. . . . On this record it is clear that the alleged “defect” in the warnings accompanying the [product] did not cause [plaintiff’s decedent’s] death.
Id. at 619 (citations omitted). See Flanagan v. MartFive LLC, 2017 WL 1316370, at *4 (E.D. Pa. April 10, 2017) (summary judgment granted against warning claim where plaintiff “testified under oath that he did not read these materials”); Wright v. Ryobi Technologies, Inc., 175 F. Supp.3d 439, 454 (E.D. Pa. 2016) (“[a]s [plaintiff] admits he never read the Operator’s Manual, the purported inadequacy of the unread warnings therein could not have caused his injury”); Hartsock v. Wal-Mart Stores East, Inc., 2009 WL 4268453, at *2 (E.D. Pa. Nov. 23, 2009) (“Plaintiff admits that he does not remember receiving a manual, nor would he have requested or read one, so the contents therein cannot have caused Plaintiff’s injuries.”); Mitchell v. Modern Handling Equipment Co., 1999 WL 1825272, at *7 (Pa. C.P. Philadelphia Co. June 11, 1999) (“the fact that Plaintiff failed to read the existing instructions confirms the conclusion that any allegedly inadequate instructions were not the proximate cause of Plaintiff’s accident”), aff’d mem., 748 A.2d 1260 (Pa. Super. 1999).
We did not find any prescriber failure-to-read product liability precedent for Puerto Rico.
We also found no failure-to-read precedent in Rhode Island.
In Andrews v. Buckman Laboratories, Inc., 181 F.3d 86 (table), 1999 WL 321526 (4th Cir. May 21, 1999), the court, applying South Carolina law, held that the plaintiff could not succeed on a warning claim because the plaintiff failed to read the relevant warnings:
[Plaintiff] testified . . . that he never read the [warning] for [the product], although it was posted near his workstation. . . . This failure to read the [warning] for [the product], coupled with the absence of any other proof that [plaintiff] otherwise was aware of its contents, necessarily precludes any causal link between the warnings . . . and [plaintiff’s] injuries. . . . Put differently, even a perfect warning could not have prevented [plaintiff’s] injury if [he] never read or became aware of the warning.
Id. at *9 (citations omitted). We did not find any prescription medical product precedent on point.
Failure to read defeats causation in South Dakota.
Causation is a necessary element of a failure-to-warn claim. . . . A plaintiff’s failure to read the available warning and instruction literature harms the ability to prove that a different warning would have changed his conduct. Therefore, courts generally hold that a plaintiff’s failure to read a given warning precludes establishment of the causation element even if the warning is arguably inadequate. The [trial] court correctly concluded that [plaintiff’s] failure to read the provided warnings would be fatal to a liability theory premised on the content of those warnings because causation could not be established.
Karst v. Shur-Co., 878 N.W.2d 604, 613 (S.D. 2016) (citations and quotation marks omitted).
In Rodriguez v. Stryker Corp., 680 F.3d 568 (6th Cir. 2012) (applying Tennessee law), the prescribing physician “could not remember ever reviewing [defendant’s device] instructions.” Id. at 575. Thus,
On this record, [plaintiff] faces a causation problem: He has no evidence that, even if [defendant] had placed the proposed warning in the instructions or given it through a sales representative, the warning would have reached [the prescriber] or would have prevented the injury.
Id. at 576. All of plaintiff’s attempts “to sidestep this problem” failed. As for “Dear Doctor” letters, there was no evidence “that [the prescriber] received and reviewed them, and most importantly no [evidence] what he would have done with a ‘Dear Doctor’ letter in this case.” Id. Therefore, “[plaintiff] has failed as a matter of law to establish a triable issue of fact over causation on his failure-to-warn claim.” Id. at 577.
General Tennessee law supports the same conclusion:
[N]o proximate cause existed between the warning label and [plaintiff’s] injury because [plaintiff] failed to read the warning. After viewing the evidence most favorably to the plaintiff, a reasonable mind could have drawn only one conclusion: the warning label . . . was not a factor in the injuries to [plaintiff] because there was no evidence that the warning label had ever been read and there was no evidence of causation with regard to the label.
Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1329 (6th Cir. 1992) (applying Tennessee law). See Bearden v. Honeywell Int’l, Inc., 2010 WL 1223936, at *6 (M.D. Tenn. March 24, 2010) (“[i]f [plaintiffs] did not read the product data sheet or the owner’s manual, they could not have relied on the statements contained therein”).
Prescriber failure to read is a defense to causation in Texas. In Porterfield v. Ethicon, Inc., 183 F.3d 464, 468 (5th Cir. 1999), the court, applying Texas law, held:
[Plaintiff] has failed to present evidence that the failure to warn was a producing cause of her injury. In this case, [the prescriber] testified that at no time prior to [plaintiff’s] surgery had he read [defendant’s] package insert or any other [defendant] literature. . . . [T]he inadequate warning was not a producing cause of [plaintiff’s] injury.
Id. at 468. The Fifth Circuit made the same finding in Pustejovsky v. PLIVA, Inc., 623 F.3d 271, 277 (5th Cir. 2010) (applying Texas law), ruling that:
As [plaintiff] admits, [the prescriber] did not recall ever reading the package insert for the drug or consulting the Physician’s Desk Reference. [That] lack of memory, of course, does not preclude the possibility that she had read these materials, but neither can it sustain [plaintiff’s] burden. . . . Accordingly, [plaintiff] fails to demonstrate a genuine issue of material fact regarding causation.
Id. at 277. Accord Robles v. C.R. Bard, Inc., 2015 WL 11120857, at *2 (N.D. Tex. March 23, 2015) (summary judgment granted “[w]here a plaintiff’s physician cannot recall whether or not they read the package insert”).
Non-drug/device decisions under Texas law also support this proposition. The Texas Supreme Court held in General Motors Corp. v. Saenz, 873 S.W.2d 353 (Tex. 1993):
There is no evidence that anyone at . . . would have read a warning free from the inadequacies determined by the court of appeals. Indeed, given that they did not read the warnings [defendant] provided, there is no reason why they would have read the warnings which the court of appeals held should have been provided. . . . Thus, there is no evidence that the inadequacies in [defendant’s] warning caused the accident.
Id. at 361. See Horak v. Pullman, Inc., 764 F.2d 1092, 1096 (5th Cir. 1985) (where plaintiff “did not read anything on the side of the [product]”, “any instructions would have been unavailing. Thus, the failure to warn could not have been a producing cause of [plaintiff’s] accident”); Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 984 (5th Cir. 1978) (“under the Restatement and Texas law, failure to read a label or warning may establish as a matter of law that a warning, even though negligently inadequate, was not the cause-in-fact of the injury. This is because an adequate warning would not have been read”) (applying Texas law); Gillespie v. Century Products Co., 936 S.W.2d 50, 53 (Tex. App. 1996) (“[plaintiffs] simply failed to read all of the warnings that were provided. . . . Accordingly, we conclude there is no evidence in the record tending to support a causal link”) (applying Texas law); Scott v. Dorel Juvenile Group., Inc., 773 F. Supp. 2d 664, 670 (N.D. Tex. 2011) (“[f]ailure to read the warnings provided negates the causal link between the alleged inadequate warnings and the user’s injury”), aff’d in part, rev’d in part on other grounds, 456 Fed. Appx 450 (5th Cir. 2012); McCune v. Graco Children’s Products, Inc., 52011 WL 7400987, at *2 (E.D. Tex. Aug. 20, 2011) (“because [plaintiff] admits that she did not read any of the materials that came with the [product] . . . Plaintiffs cannot show that the presence of [another] warning in the [defendant’s] instruction manual or other materials would have changed or affected the outcome”); Foltz v. Smith & Wesson Corp., 2009 WL 2596598, at *3 (N.D. Tex. Aug. 20, 2009) (“because plaintiff failed to read the safety instructions . . . [he] cannot establish the necessary causal link between allegedly inadequate warnings and his injury to survive summary judgment”).
An implanter’s failure to read the manufacturer’s warnings was fatal to a warning claim under Utah law in In re Wright Medical Technology, Inc. Conserve Hip Implant Products Liability Litigation, 127 F. Supp.3d 1306 (N.D. Ga. 2015). Wright Medical recognized that “where a warning is provided, but a physician does not read it or rely on it, a person cannot assert a failure to warn claim, even if the warning is defective,” id. at 1359, and predicted that Utah “would likely follow the reasoning and decisions of many other jurisdictions and find that where a learned intermediary fails to read a warning, a plaintiff is foreclosed from asserting a failure to warn claim.” Id. at 1359 n.56. Wright Medical found only one Utah case on point, Okuda v. Pfizer Inc., 2012 WL 2685053 (D. Utah July 6, 2012), where the court held that prescriber testimony “that he generally did not read any information received from sales representatives, and that he would not rely upon any such information” precluded reliance as a matter of law with respect to the plaintiff’s warranty claims. Id. at *1.
There is little Vermont law on prescriber failure to read and causation, and it isn’t favorable. The Vermont Supreme Court did mention (and distinguish) several of our favorite decisions, without adverse comment, in Town of Bridport v. Sterling Clark Lurton Corp., 693 A.2d 701, 705 (Vt. 1997) (“conspicuousness of the warning was not at issue”). A prescriber’s failure “to obtain current information” about a drug precludes justifiable reliance on a defendant’s older labeling as a matter of law. Lyman v. Pfizer, Inc., 2012 WL 2970627, at *18 (D. Vt. July 20, 2012). Nor is a prescriber’s “reli[ance] on the pharmaceutical industry in general” sufficient to establish causation as to any particular defendant’s information. Id. at *19.
The first Virginia prescriber failure to read case was Stanback v. Parke, Davis & Co., 657 F.2d 642, 644 (4th Cir. 1981) (prescriber’s testimony “established that he had not read the package insert”). Consequently, the court “agree[d] that there is not sufficient evidence of causation to allow the question to be put to a trier of fact.” Id. at 645.
[The prescriber’s] decisions and actions would not have been affected in the least by the communication of an adequate warning. As there is a complete lack of evidence indicating that [defendant’s] failure to warn her physician was a factor in producing her injury, we conclude that [plaintiff] has failed to adduce sufficient proof of causation under any of the theories of liability set forth in her complaint.
Likewise, in Rule v. Best Industries, Inc., 1997 WL 499937, 121 F.3d 700 (table) (4th Cir. Aug. 25, 1997) (applying Virginia law), the court held:
[The prescriber] did not even read the materials provided by [defendant]. He had used the [device] before and had observed their use by others. He was confident that he knew what he was doing. It would not have mattered what [defendant’s] warnings said, and the alleged lack of warning was not a proximate cause of [plaintiff’s] injury.
Id. at *3.
In Robinson v. McNeil Consumer Healthcare, 671 F. Supp. 2d 975 (N.D. Ill. 2009), aff’d, 615 F.3d 861 (7th Cir. 2010), the court canvassed Virginia law on the effect of a plaintiff’s failure to read the warning of an OTC drug:
[C]ourts faced with this issue routinely determine that where, as here, the adequacy of the form or prominence of the warnings is not in dispute, a plaintiff’s failure to read the warnings is a bar to recovery. . . . Moreover, although a plaintiff’s failure to read or heed warnings typically affects the plaintiff’s ability to prove the causation element of a negligence cause of action. . . . Where the plaintiff did not read the instructions on a product before an incident, many courts hold that an inadequate warning cannot be the proximate cause of the resultant injury
Id. at 982-83 (citations and quotation marks omitted).
The same is true for non-medical products. See Belton v. Ridge Tool Co., 911 F.2d 720 (table), 1990 WL 116783, at *1 (4th Cir. June 4, 1990) (“[t]o establish proximate cause in a case in which plaintiff challenges the adequacy of the warnings provided, plaintiff must at least have demonstrated that he read those warnings”) (applying Virginia law).
Another seminal decision on prescriber failure to read is Douglas v. Bussabarger, 438 P.2d 829 (Wash. 1968). The Washington Supreme Court forcefully held that failure to read equals no warning causation:
There is no substantial basis for appeal as to defendant-drug company. . . . The only question raised by plaintiff is whether the company should have labeled the drug’s container so as to warn of possible dangers of use of the drug. However, even if we assume such labeling should have taken place, defendant-[prescriber] testified that he . . . did not read the labeling which was on the container. Thus, if defendant-drug company was negligent in not labeling its container so as to warn of dangers, this negligence was not a proximate cause of plaintiff’s disability.
Id. at 831.
Similar cases exist in non-prescription medical product litigation. See Hiner v. Bridgestone/Firestone, Inc., 978 P.2d 505, 510 (Wash. 1999) (“[plaintiff] did not read her owner’s manual about [the product]”; “[plaintiff] has not provided sufficient evidence to demonstrate cause in fact”); Kauffman v. Manchester Tank & Equipment Co., 203 F.3d 831 (table), 1999 WL 1103357, at *3 (9th Cir. 1999) (plaintiffs “failed to raise an issue of fact about whether their injuries were proximately caused by defendant’s failure to warn” where “[i]t is undisputed that [they] did not read any of the warnings that were present”) (applying Washington law); Stepp v. Takeuchi Manufacturing Co (U.S.) Ltd., 2008 WL 4460268 (W.D. Wash. Oct. 2, 2008) (“[plaintiff] concedes that he did not look for, or read, the operator’s manual for the [product]”; “is no genuine issue of material fact as to . . . proximate cause”).
Under West Virginia law, a plaintiff’s failure to read an allegedly defective warning also cuts off causation in a warning case as a matter of law:
[Plaintiff] testified that she never read [defendant’s] package insert or any other documents accompanying her [drug] prescription. [The prescriber] likewise testified that she did not read [the defendant’s] metoclopramide warning. . . . Many courts have declined to find proximate causation in pharmaceutical failure-to-warn suits when the patient (or the prescribing physician if the learned intermediary doctrine is applicable) did not read the defendant manufacturer’s allegedly inadequate warning. These courts reasoned that if the patient or physician did not read the drug warning in the first instance, then there is no basis for finding that a stronger warning would have affected their behavior.
* * * *
[T]he effect of [a] black box warning on [the prescriber’s] behavior is irrelevant since neither [the prescriber] nor [plaintiff] read [defendant’s] labeling and therefore would not have seen a heightened warning even if it had been implemented by [defendant]. . . . In sum, plaintiff did not read the [defendant’s] labeling . . . and neither did [the prescriber]. Even if [defendant] had set forth a heightened warning in its labeling, neither plaintiff nor [the prescriber] would have seen it. And so, a stronger warning by [defendant] would not have affected the behavior of either plaintiff or [the prescriber]. Plaintiffs have therefore failed to carry their burden of establishing proximate causation.
Meade v. Parsley, 2010 WL 4909435, at *9-10 (S.D.W. Va. Nov. 24, 2010) (footnote omitted). Accord In re Zyprexa Products Liability Litigation, 2009 WL 1514628, at *12 (E.D.N.Y. 2009) (“[b]ecause there is no evidence that [plaintiff] ever read any of defendant’s warnings . . ., there is no evidence from which a jury could find that a different warning by [defendant] would have prevented him from taking [the drug]”) (applying West Virginia law).
The same result has occurred in general product liability litigation. See Shanklin v. Allis-Chalmers Manufacturing Co., 254 F. Supp. 223, 229 (S.D.W. Va. 1966) (“even if [defendant] were negligent in sending the wrong manual, that failure could in no way have been a contributing cause of the accident since plaintiff would not have read the right manual if it had been sent”), aff’d, 383 F.2d 819, 823-24 (4th Cir. 1967) (“[w]hether this book contained proper operating instructions . . . is immaterial here, for it is not disputed that [plaintiff] in any event never looked at the manual in his possession”).
Wisconsin recently passed a comprehensive tort reform statute. While prior precedent wasn’t good favorable, since the statute, things have improved. In In re Zimmer, Nexgen Knee Implant Products Liability Litigation, ___ F.3d ___, 1997 WL 1193431 (7th Cir. March 8, 2018), the implanting surgeon “did not read the packaging material [the defendant] sent with” the product. Id. at *2. Thus causation failed.
[Plaintiff’s implanting surgeon] testified that he did not read the instructions that accompanied the [device]. So even if [plaintiff] could establish that [defendant] breached a duty to warn the surgeon, summary judgment was appropriate because no evidence shows that “if properly warned, [the implanter] would have altered [his] behavior and avoided injury.”
Id. at *6 (quoting Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 876 (Wis. App. 2004)). By the way, the decision the Seventh Circuit affirmed, In re Zimmer Nexgen Knee Implant Products Liability Litigation, “Because [the implanter] did not read or rely upon the warnings [defendant] actually provided, Plaintiffs cannot prove that an improved warning − whether about the risks . . . or about proper surgical technique − would have led to a different outcome.” Id. at 728. There was no way around the implanter’s failure to read. Where a prescriber does not read, there can be “no contention that an improved warning would have prevented [plaintiff’s] injury because someone other than [the prescriber] would have read it.” Id.
That failure of the prescriber to read warnings defeats causation as to those warnings’ alleged inadequacies was established in Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 856 (10th Cir. 2003):
The test for proximate cause in a pharmaceutical failure to warn case is whether the defendant’s inadequate warning could be found to be a substantial cause of the plaintiff’s ingestion of the drug. The majority of courts that have examined the issue have held that when a physician fails to read or rely on a drug manufacturer’s warnings, such failure constitutes the intervening, independent and sole proximate cause of the plaintiff’s injuries, even where the drug manufacturer’s warnings were inadequate.
Id. at 856 (citations omitted). However, on the facts, Thom found a fact question about whether the prescriber, in fact, had failed to read the package insert. Id. at 857.
A similar ruling exists for a non-prescription medical product: Lippincott v. State Industries, 145 F.3d 1346 (table), 1998 WL 208884, at *1 (10th Cir. 1998) (where “none [of the users, including plaintiff] had inspected, looked at, or read any literature about the [product],” “the record would not have supported a jury verdict in favor of plaintiff on the failure to warn claim”) (applying Wyoming law).