Now comes the pathos of social distance. As with many of you, we are working remotely. The pantry shelves are groaning under the weight of so many soup cans. Our only reliable encounter with other humans is with the UPS delivery driver, through a door-glass darkly.

Per our Spring Break plans, right now we should be touring the distilleries of Islay, Scotland (their product makes for a delightful disinfectant), but we reluctantly canceled after being scolded that we are in a group especially vulnerable to Covid-19. You see, we dwell in geezerdom, with more sugar than hemoglobin coursing through our ancient veins. Sigh.

Time to cocoon with Netflix – and product liability decisions crowding our inbox.

Defense-hack though we undeniably are, we felt sympathy for the plaintiff in Small v. Welldyne, Inc., 2019 WL 2439143 (4th Cir. June 12, 2019). According to the complaint, an elderly woman in North Carolina ingested prescription medications sent to her by mistake. She had been receiving her prescription medications through the mail. We can relate, and it is usually a pretty good deal. One day she received a package containing six prescription medications that looked like the usual package but wasn’t. The package was addressed to her, it was the same size and color, and the individual bottles seemed to be the same as those she had been getting. But the labels on the individual bottles were addressed to a different customer – one in California – and different meds resided in the bottles.

The North Carolina woman was barely literate, did not read the labels, took the pills, began to experience confusion and hallucinations, fell and fractured her leg, went to hospital, experienced other medical problems, and eventually died. Her son brought a lawsuit on behalf of the estate against the shipper alleging negligence and breach of warranty. The district court granted summary judgment, ruling that the decedent’s contributory negligence precluded any recovery (North Carolina is one of the very few states left that applies the old complete bar contributory negligence rule) and that the connection between the medications and the death was too attenuated.

The plaintiff appealed to the Fourth Circuit. That circuit is not known as possessing a particularly pro-plaintiff, bleeding heart. Nevertheless, it reviewed the arguments de novo, reversed the summary judgment on the negligence claims while affirming on the implied warranty claim, and remanded the lawsuit.

Why?

First, the Fourth Circuit held that the contributory negligence issue was one for the jury. It is not clear from the opinion whether it mattered that the patient was geriatric and barely literate. It is clear that there was a North Carolina case on the books holding that failure to read a warning, in certain circumstances, might not constitute contributory negligence as a matter of law. Plus, there were some ambiguities in the record as to the extent to which the woman’s relatives had or had not counseled her against taking the medications.

Bottom line: if you are relying on a warning in a North Carolina case to set up a contributory negligence defense, pay close attention to the case law and the specific facts in your case.

Second, the Fourth Circuit held that the competing expert testimony as to medical causation was an issue for the jury, not summary judgment. The plaintiff experts set forth a chain reaction theory: the wrong meds caused the woman’s blood pressure to drop, which resulted in confusion, which led to a fall, which led to hospitalization, etc. The district court thought that was an “etc.” too far. It was a failure of proximate causation as much as medical causation. The Fourth Circuit again reversed, opining that the expert opinions, on their face, could have supported a verdict for the plaintiff.

But that conclusion assumed that the plaintiff expert opinions were admissible. The court below had not considered the defendant’s arguments that those opinions flunked the Daubert standards. Thus, the Fourth Circuit remanded the case with instructions to conduct a Daubert analysis on the plaintiff expert medical causation opinions.

We’ll await further developments. We’d hate to think we’ll still be hunkered down at home when the district court does Daubert. In truth, cabin-fever is a small price to pay to avoid spread of a much more serious fever. Safety must come first, and we hope you all remain safe and well.