We just emerged from a deposition of a plaintiff that was worse than the usual festival of prevarication, evasion, and obfuscation.  You are catching us at a moment when our cynicism has plummeted to new depths.  Sometimes it seems that some plaintiff lawyers will school their clients into spouting any nonsense necessary to keep a bad case alive.  Sometimes it seems that the British system, where witness preparation is frowned upon, makes a good deal of sense.

We are not sure quite how to feel about the recent decision in Hunt v. McNeil Consumer Healthcare, 2014 WL 1779471 (E.D. La. May 5, 2014).  The court granted summary judgment on solid warning causation grounds, but it occurs to us how easy it would be for a lawyer with, ahem, flexible ethics to navigate around this ruling.

Hunt is another one of those sad Stevens-Johnson syndrome cases, with a parent claiming that her child sustained terrible injuries after taking ibuprofen.  It was an over-the-counter drug, so the issue was whether the actual purchaser, rather than the learned intermediary/doctor, was adequately warned and whether a different warning would have made a difference.  In an effort to satisfy that test, the plaintiff supplied the usual wouldn’t-you-have-liked-to-know formulation. The mother testified that she would like to have known that her child “was going to lose all her skin; that she was going to be burned.”  That would be powerful stuff in front of a jury.  But the court held that such testimony was not enough to get to a jury: “In hindsight, Plaintiff understandably would have liked to know the injuries M.H. would later suffer.  But Plaintiff did not testify that a different warning label would have changed her decision to administer Children’s Motrin to M.H., nor was she ever asked questions to this effect by counsel.” The plaintiff presented no evidence that a different warning would have caused a different purchase decision in that particular case.  The plaintiff did point to the defendant’s admission that strong warnings hurt sales, but that is not probative of particular warning causation in this case.

The result in Hunt is unassailable.  It is also in accord with common sense.  Anyone connected to reality suspects that an additional warning that is medically correct would almost certainly not prompt parents to choose a different product or forego medicine entirely. 

Perhaps this is an instance where we should not stop at congratulating the court for its reasoning and the defense for its advocacy; we should also congratulate the plaintiff side for honesty.  They did not push the point past veracity.

And yet, and yet.  We can imagine lawyers out there not being so scrupulous.