We write on a lovely Sunday afternoon, much of which was devoted to trying to figure out what the oldest of the Drug and Device Law Little Rescue Dogs would deign to eat.  We should note that we would do literally anything for this frail, scruffy angel incarnate.  To wit, we have cooked fresh beef and chicken for every meal since she started refusing dog food.  Then, starting yesterday, she refused to eat the beef and chicken, even fed by hand.  We tried other delicacies without success.  Then we panicked.  In desperation, we opened a can of dog food (albeit high-end premium dog food).  And she scarfed it down.  Our heart rate has returned to near-normal, notwithstanding the fact that none of this makes any sense.

What does make sense is today’s short and very tidy decision.  In Meade v. Ethicon, Inc., 2021 U.S. Dist. LEXIS 179320 (E.D. Ark. Sept. 21, 2021), a case remanded to the Eastern District of Arkansas from the pelvic mesh MDL, the plaintiff sued the manufacturer of her mesh device, asserting the usual “kitchen sink” litany of claims.  The court had already granted summary judgment on the strict liability design defect claim and the fraud-based claims, as well as the claims for breaches of warranties, manufacturing defect, negligent infliction of emotional distress, gross negligence, unjust enrichment, and violation of consumer protection laws.  This left only a few claims, among them failure-to-warn claims sounding in strict liability and negligence, and the defendant moved for summary judgment on those claims.

Regular readers of this blog are aware of our fondness for the doctrine of “warnings causation.”  For the uninitiated, a brief explanation:  to prevail on a failure-to-warn claim under the learned intermediary doctrine, a plaintiff must prove both that the warnings accompanying her prescription medical device were inadequate and that the inadequate warning proximately caused her alleged injuries (hence, “warnings causation”).  To prove this element of her claim, the plaintiff must adduce evidence that a different or stronger warning would have altered her physician’s decision to prescribe the device.  If she cannot, then the claim fails, whether or not the warning was adequate.

And there was the rub, for the plaintiff in today’s case.   Because her prescribing physician – the doctor who implanted her mesh device – died before he was deposed, there was not (and never could be) any evidence of how the doctor would have behaved in the face of a different warning.  The plaintiff argued that her medical causation expert cured this void by opining that a “defective sling” caused the plaintiff’s injuries.  But the court wouldn’t bite, holding that the expert could not “offer testimony as to whether [the implanter] relied on the inadequate warning defendants provided with the . . . device or whether [he] would have acted differently had he been aware of the risks or had he been given an adequate warning.”  Meade, 2021 U.S. Dist. LEXIS 179320 at *11 (citations omitted).  The court concluded, “Without testimony from [the] implanting physician, there is no triable issue of fact on causation as to plaintiff’s failure to warn claims that can withstand summary judgment.”  Id. (citations omitted).  While we would tinker with the grammar of that statement, we cannot quibble with its conclusion.

We understand that some may lament a decision that penalizes the plaintiff for her doctor’s untimely death.  In this case, the plaintiff apparently allowed the whole discovery period to elapse without deposing the doctor.  When the omission came to light, the doctor had died.   Moreover, in any event, giving the plaintiff a “pass” on proving an essential element of her claim would be profoundly unfair to plaintiffs who find themselves out of court because of their (living) doctors’ unfavorable or inadequate testimony.  So often, courts muddy the law of “warnings causation,” shifting the burden of proof to allow deficient claims to proceed.  We applaud the Meade court for avoiding this trap.