At this point, let’s call it what it is: anti-social distancing. The second word follows much better from that first word. They go together. Always have. It gives you the right mindset too. When you go for a perilous walk around the block, and you see someone doing the same thing, and they start coming too close to you: “Get the **** away from me.” Voila, distancing. Anti-social distancing. It works. Then you go back inside. The same people are there, and you head back into your tiny office and find some work to do. You get back up, go get a little too much to eat and return to your tiny office. You talk on the phone or stare at grids of videos on your screen. From your tiny office. It’s all so anti-social and distant. It’d be nice to have immunity from this thing. At least you’d lose the worrying, but you probably wouldn’t lose the distancing that everybody else would still practice on you. Ah, well.
The defendants had immunity in Sharp v. Ethicon, Inc., 2020 WL 1434566 (W.D. Ark. Mar. 24, 2020), or at least something very like it. Its name was Dr. Crownover. The defendants didn’t even need a warning with him. Adequate or inadequate, he took care of it.
The plaintiff had complications from her pelvic mesh surgery. Her surgeon was Dr. Crownover. After remand back to Arkansas (source of the applicable law), plaintiff simply surrendered over a dozen claims on her MDL short-form complaint that probably never should have been there, all that was left for defendants to seek summary judgment against was plaintiff’s failure to warn claim. Id. at *1. Plaintiff claimed that the warnings in the instructions for use were inadequate.
Dr. Crownover basically gave defendants immunity. He knew that the pelvic mesh product, called a TVT-O device, had a wide range of potential complication that could be mild, moderate or severe:
[Dr. Crownover] was aware—both at the time of his deposition and at the time of Ms. Sharp’s surgery in 2010—that there were certain risks associated with the TVT-O device, including wound complications, fistula formation, inflammation, neuromuscular problems, the need for one or more surgeries to treat an adverse event, the possible recurrence of the underlying medical condition or the failure of the device, erosion/exposure/extrusion of the mesh, and contraction of the tissues. He agreed that all of these complications could be “mild, moderate, or severe.”
Id. at *4. While he likely read the instructions for use, he didn’t rely on them. He relied on his own training and experience and the medical literature. Id. Dr. Crownover then landed the haymaker. Even the additional warning plaintiff was seeking would not have changed his decision to prescribe the TVT-O device:
Q If Ethicon had included in the TVT IFUs the words found under the mesh column in Exhibit No. 8, is it correct to say that those additional words being added to the IFUs would not have changed your decision to prescribe the TVT-O for Ms. Sharp?
A They would not have influenced whether I offered that or not.
There goes but-for causation and proximate causation. The court granted summary judgment. Id. at *4-5. The learned intermediary doctrine works so well when the doctor is, in fact, learned.
OK, I’m now going to post this thing on the website for you. Then to the refrigerator. Then back to the tiny office. Ah, well.