Today’s post is not about something cutting edge or controversial.  It’s a don’t lose sight of the basics kind of post.  Plaintiff bears the burden of proof on causation.  In a prescription drug failure to warn case, that means plaintiff must demonstrate that a different warning would have changed whether the drug would have been prescribed to plaintiff or, in some circumstances, prescribed in the same way.  That also means that the prescriber’s testimony is crucial to plaintiff’s case.  Specifically, whether the prescriber had read the warning provided by the manufacturer.  Because if the prescriber has not read the warnings, it does not matter if they were different or stronger — they would not have reached the prescriber’s attention or prevented plaintiff’s injuries.  Therefore, no causation.  But what if the prescriber’s testimony is “I don’t recall” reading the warnings?  We asked that question for our post “When It’s Not Quite Physician Failure To Read”  The answer then and now is – it shouldn’t make a difference.

Today we have another case to support that conclusion – In re Taxotere Prods. Liab. Litig.2022 WL 245605 (E.D. La. Jan. 11, 2022).  It is another dismissal of a bellwether case in the Taxotere MDL.  Louisiana recognizes the learned intermediary doctrine.  So, to establish proximate cause for failure to warn, plaintiff bears the burden of proving that a proper warning would have changed the prescribing decision.  Id. at *2.  And while in earlier Taxotere MDL cases, the district court chipped away at learned intermediary by finding that the chemotherapy decision-making process was unique and required a shift toward plaintiff’s actions rather than the prescriber’s, the Fifth Circuit rejected that notion in a case we discuss here.  Therefore, this time around, the district court acknowledged that “a causation analysis must focus on the prescribing physician’s decision to prescribe the drug.”  Id. at *2.  With the focus back on the right question, the court examined the evidence.

Plaintiff’s prescriber testified that he did not recall reading the docetaxel label or relying on any information therein.  Id. at *1.  Plaintiff asked no follow-up questions, so the only testimony in the case is “I don’t recall.”  Id. at *2-3.  And, while that does not mean the prescriber did not read the materials, “neither can it sustain [the plaintiff’s] burden.”  Id. at *3.

Having not challenged the prescriber’s testimony, plaintiff tried to muddy the waters by suggesting that plaintiff’s prescriber got information about the drug from peer-reviewed literature, seminars, and discussions with colleagues and that had defendant changed its warning, he would have heard about it from one of these third-party sources.  But suggesting “mere possibilities” are not enough.  Without “summary-judgment type evidence” – certainly something more than speculation – plaintiff cannot meet her burden of proof.  Id.

It may not be as clean as a failure to read case, but it’s important to remember that “I don’t recall” isn’t enough for plaintiff either.