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The plaintiff in Blackburn v. Shire U.S., Inc., 2020 WL 2840089, at *1-2 (N.D. Al. June 1, 2020), claimed that the drug Lialda caused his kidney disease and his doctor would not have continued prescribing it to him if the warning label recommended detailed and more frequent monitoring for renal disease, instead of simply recommending “periodic” monitoring.  While some might describe this type of failure to warn claim as picky, that did not matter.  The plaintiff ran into a much, much greater problem on defendant’s summary judgment motion: proximate causation.  Plaintiff’s proximate causation problems were many and came from multiple directions.

Plaintiff’s own prescribing doctor all but eviscerated proximate causation.  He testified that he did not read the Lialda label before prescribing it to the plaintiff, *3, a significant hole in proximate causation.  Yet the doctor also knew that mesalamine drugs, like Lialda, contain a warning on “renal impairment” and that the doctor should “assess renal function at the beginning of treatment and periodically during treatment.  Id. at *4.  The doctor, however, never did that.  He did not evaluate plaintiff’s renal function before prescribing Lialda to him, and he never evaluated plaintiff’s renal function during plaintiff’s use.  Id. at *4-5.  In fact, the doctor’s office prescribed more Lialda to plaintiff a full 18 months after the initial prescription, even though the doctor had not seen him since that first prescription.  Id. at *5.

All of this testimony was bad for, in fact fatal to, plaintiff’s claim:

A drug manufacturer is entitled to judgment as a matter of law on a warnings claim when the record demonstrates that the prescribing physician would not have read or followed an alternative warning. There is no presumption in Alabama that an adequate warning would have been read and heeded by the prescribing physician.

Id. at *6 (citing multiple Eleventh Circuit and Alabama federal court decisions).

Plaintiff also created his own proximate causation problems.  Even though his doctor’s office scheduled a follow-up visit, plaintiff did not keep it.  Id. at *5.  Yet, after having missed that appointment and not seeing the doctor for 18 months, plaintiff asked for a refill, and he got it.  Id.  And then he never saw the doctor again.  Id.  This was the second half of a double-whammy to proximate causation on plaintiff’s failure to warn claim:

Even if [the doctor] had ordered a renal evaluation of [plaintiff] after prescribing Lialda, there is no evidence that [plaintiff] would have complied with the instruction.  [The doctor] scheduled an appointment with [plaintiff] in January 2014 to monitor [plaintiff’s] treatment, but [plaintiff]  did not keep the appointment.  After [the doctor] prescribed Lialda for [plaintiff] in November 2013, [plaintiff] did not return to [the doctor].

Id. at *7.

The factual history developed during discovery just did not support plaintiff’s claim enough to allow it to go to a jury.  The court found the history so compelling that it rejected the doctor’s testimony that he would have read the alternative warning proposed by plaintiff and might have altered his treatment because of it.  Rather, given the actual history of the doctor’s treatment, the Court found this testimony to be “self-interested”:

A summary judgment . . . safeguards against a jury verdict based on a non-party witness’s self-interested, speculative testimony regarding causation that is wholly contradicted by historical fact.  This is not the type of evidence that creates a question of disputed fact for a jury to resolve.

Id. at *7-8 (citing controlling Fifth Circuit precedent).

Without evidence of proximate causation, a failure to warn claim cannot go to a jury.  The court dismissed the case with prejudice.