Confident prescribing physicians and implanting surgeons are the best “learned” intermediaries.  They’re experienced at what they do and aren’t intimidated by plaintiffs’ counsel and their threats of malpractice claims if they don’t testify the way plaintiffs want them to.  Confident learned intermediaries stand by their medical decisions.  Thus a confident learned intermediary’s testimony will defeat causation as a matter of law by stating that, notwithstanding a poor result, the treatment provided was standard of care, and even in hindsight they would not do anything different.  Because we encountered many stand up learned intermediary surgeons in the Bone Screw litigation, several of the relatively early decisions from the 1999-2001 timeframe are Bone Screw cases.

Since the learned intermediary rule is a creature of (essentially unanimous) state law, we start with state appellate decisions.  After the Texas Supreme Court’s adoption of the learned intermediary rule in Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012), it had to apply the rule.  Centocor held as a matter of law that plaintiffs failed to prove that the claimed inadequacy in the defendant’s labeling – that the risk was “rare” − caused anything.  One prescriber “testified that based on her review of all the post-approval data, at the time of trial, she believed the [risk] was still rare.”  Id. at 171.  The other prescriber testified similarly.  Id. at 172 (“continued to prescribe” the drug “a lot” and “believed it to be an effective drug for many of her patients”).  “Accordingly, because there is no causation evidence to support [plaintiffs’] claims, all of which are premised on . . . failure to warn, [their] claims must fail.”  Id. at 173.

Centocor relied in part on Guzman v. Synthes (USA), 20 S.W.3d 717 (Tex. App. 1999), where an implanting surgeon dismissed the plaintiff’s nitpicking as involving “concepts basic to orthopedics” and testified that “he would treat [plaintiff] in the identical manner today as he did [before].”  Id. at 720-21.  That testimony defeated a purported (and since rejected in Texas) heeding presumption and left plaintiff with “no evidence” supporting causation.  Id. at 721.  Accord Wyeth-Ayerst Laboratories Co. v. Medrano, 28 S.W.3d 87, 95 (Tex. App. 2000) (learned intermediary testimony that none of plaintiff’s alleged “failure[s] to disclose” would have “affected her decision to prescribe the [product] to [plaintiff]” defeated causation “as a matter of law”).

In a per curiam order, in Strumph v. Schering Corp., the New Jersey Supreme Court reversed an intermediate court decision for “substantially for the reasons expressed in [the] dissenting opinion” below.  626 A.2d 1090, 1090 (N.J. 1993).  That dissent concluded that, as a matter of law, the plaintiff failed to establish causation under the learned intermediary rule:

[Plaintiff’s prescribers] testified that even if they had read all the information contained in the [later] PDR entry for [the drug], which plaintiff’s experts admitted contained adequate warnings, this would not have changed their decisions to prescribe the drug for plaintiff.

Strumph v. Schering Corp., 606 A.2d 1140, 1148 (N.J. Super. App. Div. 1993) (dissenting opinion).  Further, “both doctors testified that they still prescribe [the drug] for patients with conditions similar to plaintiff’s condition.”  Id.  Consistent with “most jurisdictions”:

[A] defendant drug manufacturer may not be held liable for an alleged inadequate warning where the only evidence on the issue of causation is the prescribing doctor’s unequivocal testimony that his or her decision to prescribe the drug was not affected by the warning.

Id. at 1150 (citations omitted).

Several other state appellate decisions are to the same effect.  Hoffmann-La Roche, Inc. v. Mason, 27 So.3d 75 (Fla. App. 2009), reversed a plaintiff’s verdict for entry of judgment n.o.v. where the prescriber:

testified that he would still be willing to prescribe [the drug] to his patients even if there was evidence showing that it could cause [plaintiff’s condition] in rare cases.  He also testified that even if the warning label contained all of the information suggested by [plaintiff’s] expert, he would still have prescribed the medication for [plaintiff].

Id. at 77.  Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006), affirmed summary judgment because even if the omitted risk “had been added to the ‘Warnings’ section of the label,” the prescribing physician testified he “would still have prescribed the drug for [plaintiff].”  Id. at 150-51.  Silva v. SmithKline Beecham Corp., 2013 WL 4516160, at *3 (N.M. App. Feb. 7, 2013) (unpublished), also affirmed summary judgment in light of prescriber testimony:

[A]lthough the FDA required label changes to the warnings for [the drug] and its generic equivalent after [the prescriber’s] prescription decision, she explained in her deposition that “[n]othing in the FDA required label changes would affect [her] decision to prescribe [the drug] today” to patients who present in the same way that [the decedent] did. . . .  [H]er unequivocal position to use [the drug] or its generic equivalent to treat [the decedent] irrespective of the adequacy of [defendant’s] warning label information . . . precludes Plaintiffs’ inadequate warning claims.

Id. at *3.

Federal courts of appeal, applying state law, have repeatedly reached the same conclusion when confronted with the testimony of confident prescribing or implanting physicians who have reaffirmed their prescription decisions notwithstanding whatever warning-related mud that plaintiffs sought to sling against prescription medical products.

Applying the Florida Mason decision that we have already discussed, Salinero v. Johnson & Johnson, Inc., 995 F.3d 959, 966 (11th Cir. 2021), held that the implanting surgeon’s testimony “shut[] down” the plaintiff’s warning claim because, warnings “containing more information on the risks posed by [defendant’s device] would not have altered his decision to use the implant in [plaintiff’s] surgery.”  Id. at 966.

[The implanter] provided explicit, uncontroverted testimony that he believed his decision to use [the device] as the . . . implant for [plaintiff’s] surgery was correct. . . .  [He] repeated that he stood by his decision to use [device] [plaintiff] and still believed that the surgery he performed . . . was the “best option” for her. He also explained that [device] remained his “preferred implant” for similar surgeries.  Indeed, he said, that if he were “doing [the same surgery] this afternoon,” he would still use that implant.  His testimony unequivocally establishes that he would have used the . . . implant for [plaintiff’s surgery] regardless of the risks included in the [product warnings].

Id. (citations omitted).  “Just like in Mason, [this] testimony reveals that any claimed inadequacies in the [product warnings] could not have been the proximate cause of [plaintiff’s] injuries.”  Id.

Salinero also followed the recent Hubbard v. Bayer HealthCare Pharmaceuticals, Inc., 983 F.3d 1223, 1233 (11th Cir. 2020), prescription drug decision that affirmed a similar summary judgment under Georgia law:

[Defendant] is entitled to final summary judgment as a matter of law.  [The prescriber] provided explicit, uncontroverted testimony that, even when provided with the most current research and FDA mandated warnings, as well as the information found in [defendant’s] updated . . . label, he would still have prescribed [the drug] to [plaintiff]. . . .  The causal chain is therefore broken, and [plaintiffs] cannot establish proximate cause. . . .  Most importantly, [the prescriber] unambiguously testified that he views his [prior] decision to prescribe [the drug] to [plaintiff] as an appropriate one, even now that he knows exactly what was included in the [updated] label.

Id. at 1233 (citation omitted).  Accord Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 816 (11th Cir. 2010) (no causation because “[t]he doctor provided explicit, uncontroverted testimony that, even when provided with the most current research and FDA mandated warnings, he still would have prescribed” the drug to the decedent) (applying Georgia law).

Another recent decision is In re Taxotere (Docetaxel) Products Liability Litigation, 994 F.3d 704 (5th Cir. 2021) (applying Louisiana law).  Causation problems in the Taxotere MDL are particularly prominent because they depend on oncologists and their patients eschewing lifesaving standard-of-care chemotherapy due to a risk of – permanent hair loss.  That don’t impress us much, and it didn’t impress the Fifth Circuit either.  Unsurprisingly, plaintiff’s prescribing oncologist testified that if “someone with [plaintiff’s] medical history came to you today with the same tumor type,” that plaintiff would get the “same recommendation” for treatment.  Id. at 709 (citation and quotation marks omitted).

[T]he prescriber] testified that the additional warning . . . has not materially altered his risk-benefit assessment of [the drug]. . . .  The specific type of [risk] appears on this record to have had no effect on [his] prescribing decision. . . .  [The prescriber] repeatedly testified that a [drug] label warning of potentially permanent hair loss − as opposed to temporary hair loss − would not have changed his decision to use the [drug in] chemotherapy to treat [plaintiff].

Id.

Centocor also cited Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 210-212 (5th Cir. 2008) (applying Texas law and discussed here), several times.  372 S.W.3d at 165, 170, 173.  In Ackermann the decedent’s prescribing physician “his deposition and in his later declaration . . . affirmed that he would have prescribed [the drug] to [the decedent] and adhered to the treatment regimen he used regardless whether he had received the proposed stronger warning.”  526 F.3d at 210 (footnote omitted), see id. at 212 (citing prescriber’s testimony “that his treatment protocol would not have changed and he still would have prescribed [the drug] regardless of the warning given by the manufacturer”).

There are quite a few older precedential federal court of appeals decisions that also involve stand-up prescribers/implanters who reaffirm their use of the products under attack as proper and that they would do it again.  See Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1018 (8th Cir. 2004) (no causation where prescriber “continues to prescribe [similar] medication . . . since the incident involving [plaintiff]” and “continues to prescribe [this drug], because [it] is a good medication”) (applying North Dakota law); Ellis v. C.R. Bard, Inc., 311 F.3d 1272, 1283 n.8 (11th Cir. 2002) (the “causal link is broken” where the implanting surgeon “would have taken the same course of action even with the information the plaintiff contends should have been provided”) (citation and quotation marks omitted) (applying Georgia law); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 977 (10th Cir. 2001) (no causation because, due to plaintiff’s condition, the implanting surgeon “would not have used the [plaintiff’s alternative] even with the knowledge that the [product] was weaker”) (applying Kansas law); Wright v. Abbott Laboratories, Inc., 259 F.3d 1226, 1235 (10th Cir. 2001) (no causation where medical personnel “had no alternative other than to use the . . . procedure that existed at the time of [plaintiff’s] injury”; malpractice was “intervening cause”) (applying Kansas law); Eck v. Parke, Davis & Co., 256 F.3d 1013, 1022 (10th Cir. 2001) (no causation where prescriber testified that “even if she knew [plaintiff] was taking, or might take, a drug with a [greater synergistic risk], she still would have prescribed [this drug],” because “the risk of” plaintiff’s underlying condition “was much greater” than drug’s risk) (applying Oklahoma law); Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003-04 (4th Cir. 1992) (no causation where implanter testified that the “risk that [plaintiff’s] expert confirmed . . . would not have changed his decision to prescribe the [device]”) (applying South Carolina law); Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 817 (5th Cir. 1992) (“possibility that [the prescriber] would have changed his decision if he had been warned of the possibility of rare [events] caused by [the drug] is too remote to create a genuine issue of fact with respect to warning causation”) (applying Mississippi law); Stanback v. Parke, Davis & Co., 657 F.2d 642, 645-46 (4th Cir. 1981) (“the record conclusively demonstrates that [the prescriber’s] decisions and actions would not have been affected in the least by the communication of an adequate warning”) (applying Virginia law).

Between non-precedential federal affirmances and federal district courts, there are literally scores of learned intermediary causation decisions that turn on lack of any evidence that a better warning would have led to a different result.  Since so many of these decisions arise from MDLs and similar state court aggregations – where the state law being applied bears no relationship to the location of the court issuing the decision − we’ll present the rest of these cases in state-by-state style:

Alabama

West v. Janssen Pharmaceuticals, 2018 WL 1977258, at *12 (Mag. M.D. Ala. April 4, 2018) (no causation where prescribing physician “testified that his prescribing decision would not have changed”), adopted, 2018 WL 1973272 (M.D. Ala. April 26, 2018); Cooper v. Bristol-Myers Squibb Co., 2013 WL 85291, at *8 (D.N.J. Jan. 7, 2013) (no causation given prescriber’s “testimony that he would prescribe [the drug] to Plaintiff again even with the benefit of the additional . . . warning proposed by Plaintiff”) (applying Alabama law); Barnhill v. Teva Pharmaceuticals USA, Inc., 819 F. Supp.2d 1254, 1261 (S.D. Ala. 2011) (no causation where “at the time of her deposition − ten years after firsthand experience with [plaintiff’s injury] – [the prescriber] continued to prescribe [the drug] for . . . the very same illness for which she treated Plaintiff”); In re Trasylol Products Liability Litigation, 2011 WL 2117257, at *5 (S.D. Fla. May 23, 2011) (no causation where prescriber “testified . . . that he had considered the information that Plaintiff claims was wrongfully omitted . . ., but that, having considered it, he nevertheless would continue prescribing [the drug]”) (applying Alabama law); In re Accutane Litigation, 2016 WL 5958375, at *8-11) (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified they “would still prescribe [the drug]” to plaintiffs if they “were presented in the same manner today, despite what [they] now know[] about [the drug] and its risks and side effects” or “would not have changed [their] practice given a different warning”) (applying Alabama law).

Alaska

None.

Arizona

McBroom v. Ethicon, Inc., 2021 WL 824411, at *3 (D. Ariz. March 4, 2021) (no causation where implanting surgeon “did not testify that he would have shared warnings about increased risks with Plaintiff, or that the warnings would have altered his decision to implant the [device]”); Paseka v. Ethicon Inc., 2020 WL 8175427, at *2, 4-5 (D. Ariz. Nov. 9, 2020) (no causation and heeding presumption rebutted where implanter “still stands by his decision to implant the [device] in Plaintiff and still regards [it] to be a safe and effective treatment for” plaintiff’s condition); D’Agnese v. Novartis Pharmaceuticals Corp., 952 F. Supp.2d 880, 892 (D. Ariz. 2013) (no causation where prescribing physician “recommended that [plaintiff] restart [the drug] at the same dose and frequency . . . years after [plaintiff] developed [the complained-of condition] and [prescriber] continues to prescribe [the drug] to his patients”); In re Zyprexa Products Liability Litigation, 2009 WL 5062109, at *14-15 (E.D.N.Y. Dec. 10, 2009) (no causation where prescriber’s “testimony shows that she would not have changed her decision to prescribe [the drug] even if [defendant] had provided a different warning”), aff’d, 394 F. Appx. 817, 819 (2d Cir. 2010) (because prescriber “stated explicitly that alternative warnings about [the drug] would have had no effect on her prescribing habits”) (applying Arizona law); In re Accutane Litigation, 2016 WL 5958375, at *11-13 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs’ no causation where “clear that the doctor would not have altered his prescribing practice” in response to “a different warning,” “confirmed that a stronger warning would not have altered his decision to prescribe [the drug],” “would still have prescribed [the drug] to Plaintiff because of the condition presented,” and “would still prescribe [the drug] to Plaintiff today”) (applying Arizona, law).

Arkansas

Sharp v. Ethicon, Inc., 2020 WL 1434566, at *4-5 (W.D. Ark. March 24, 2020) (no causation where the implanting surgeon “testified − without qualification − that different warnings would not have changed his decision to prescribe” and “that he would have taken the same course of action then as he would now, as his good opinion of the device had not changed”); Boehm v. Eli Lilly & Co., 2012 WL 12848432, at *4 (E.D. Ark. Oct. 4, 2012) (no causation were, “[u]nderstanding the known risks,” the prescribing physicians testified that “they stand by their decisions to prescribe”), aff’d, 747 F.3d 501 (8th Cir. 2014).

California

Missouri v. Eli Lilly & Co., 394 F. Appx. 825, 827 (2d Cir. 2010) (no causation where the prescribing physician “continues to prescribe [the drug] to patients in similar positions to [plaintiff] today”) (applying California law); Enborg v. Ethicon, Inc., 2022 WL 800879, at *21 (E.D. Cal. March 15, 2022) (no causation where implanting surgeon “stands by his decision to recommend and use [device] in treating [plaintiff]” and “ would offer a woman with [plaintiff’s] symptoms the same treatment plan today”) (citations and quotation marks omitted); In re Plavix Marketing, Sales Practices & Products Liability Litigation, 2017 WL 4838842, at *7 (D.N.J. Oct. 26, 2017) (no causation where both [prescribers] testified . . . that even considering the [complained-of] risks and the additional warnings, they would have prescribed [the drug] to Plaintiff”) (applying California law); Thomas v. Abbott Laboratories, 2014 WL 4197494, at *7 (C.D. Cal. July 29, 2014) (no causation where the prescriber “testified that had he been aware” of what plaintiff alleged, “he still would have prescribed”); Mattson v. Bristol-Meyers Squibb Co., 2013 WL 1758647, at *5 (D.N.J. April 22, 2013) (no causation where prescriber testified that prescribing the drug remained the “standard of medical practice today . . . that he would continue to prescribe [the drug] to patients like Plaintiff,” and “would not have changed the prescription for Plaintiff even understanding the additional risks that have been raised by Plaintiff’s allegations in this litigation”) (applying California law); In re Zyprexa Products Liability Litigation, 2009 WL 1850970, at *14 (E.D.N.Y. June 22, 2009) (no causation where prescriber “testified that he ‘would do the same thing’ regardless of the warning provided”), reconsideration denied, 2009 WL 2160999 (E.D.N.Y. July 8, 2009) (applying California law); Nix v. SmithKline Beecham Corp., 2007 WL 2526402, at *3 (D. Ariz. Sept. 5, 2007) (no causation where prescriber “testified that despite [the decedent’s] death and updated warnings from Defendant, he continues to prescribe [the drug] for his patients because he believes [it] is a safe and effective medicine”) (applying California law); Latiolais v. Merck & Co., 2007 WL 5861354, at *4 (C.D. Cal. Feb. 6, 2007) (no causation where the prescriber “repeatedly stated that he would have prescribed [the drug], even with a black box warning, in unequivocal and certain terms”), aff’d, 302 F. Appx. 756 (9th Cir. 2008); In re Pradaxa Cases, 2019 WL 6043514, at *5-6 (Cal. Super. Nov. 8, 2019) (no causation where prescriber “testified that none of the additional risk information . . . presented to him by Plaintiff’s counsel . . . would have changed his decision to prescribe [the drug] to Plaintiff, or the kind of informed consent discussion he had with her”); Pradaxa Cases, 2019 WL 1177507 at *3 (Cal. Super. Feb. 1, 2019) (same), amended, 2019 WL 6043512 (Cal. Super. March 29, 2019); Byetta Cases, 2015 WL 883211, at *1 (Cal. Super. Feb. 26, 2015); In re Plavix Product & Marketing Cases, 2017 WL 2882212, at *3 (Cal. Super. June 29, 2017) (no causation where “[t]he prescribing doctors would not have changed their prescriptions based on what they now know about [the drug]”); Lord v. Sigueiros, 2006 WL 1510408, at *3 (Cal. Super. April 26, 2006) (no causation where the prescriber “testified that ‘based on what he knows now,’ he would not have changed the warning he gave to decedent”), aff’d, 2007 WL 4418019 (Cal. App. Dec. 19, 2007) (unpublished); In re Accutane Litigation, 2016 WL 355843, at *13-17 (N.J. Super. Law Div. Jan. 29, 2016) (no causation where multiple prescribers testified: that he would prescribe the drug to plaintiffs “today” knowing “everything” about the drug, including the plaintiffs “lawsuits”) (applying California law).

Colorado

Curtin v. Ethicon, Inc., 2021 WL 825986, at *7 (D. Colo. March 4, 2021) (no causation where implanting surgeon’s “testimony indicates that further information regarding [the device’s] risks . . . would not have affected [the implanter’s] decision to use the . . . device for [plaintiff’s] surgery”); Carver v. American Medical Systems, Inc., 2020 WL 8258217, at *3 (D. Colo. May 18, 2020) (no causation where implanting surgeon “testified that she would still prescribe the [the device] to plaintiff − even knowing what she knows now”); In re Taxotere (Docetaxel) Products Liability Litigation, 2020 WL 1030851, at *3 (E.D. La. March 3, 2020) (no causation where prescribing physician “testified that she still would have recommended [the drug] even if there had been a warning about [the alleged risk] in the label”), aff’d, 859 F. Appx. 692 (5th Cir. 2021) (applying Colorado law); In re Accutane Litigation, 2016 WL 5958375, at *13-17 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified:  “she continues to prescribe [the drug] today; that it was “a miracle drug”; “he would still prescribe [the drug] to Plaintiff if he were presented in the same manner today knowing what he now knows about [the drug] and its risks and side effects”; “if he saw a patient today with [a condition] like Plaintiff’s, he would consider them a candidate for [the drug]”; “a different warning would not have altered her advice to prescribe [the drug][“ (applying Colorado law); In re NuvaRing Litigation, 2013 WL 1874321, at *26 (N.J. Super. Law Div. April 18, 2013) (no causation where prescriber “continues to prescribe” the drug while “aware of the risks”) (applying Colorado law).

Connecticut

Swoverland v. GlaxoSmithKline, 2011 WL 6001864, at *3 (D. Conn. Oct. 5, 2011) (no causation where the prescribing physician “indicated that knowing what he knows now, he would not change any of the medical advice or prescriptions that he gave to the plaintiff”); Roberto v. Boehringer Ingelheim Pharmaceuticals, Inc., 2019 WL 4806271, at *3 (Conn. Super. Sept. 11, 2019) (no causation where the prescriber “testified clearly that he stands behind his decision to prescribe [the drug] and that, in prescribing [it], he made the right decision”) (citation and quotation marks omitted).

Delaware

Green v. Janssen Pharmaceuticals, Inc., 2019 WL 1567841, at *3 (D. Del. April 11, 2019) (no causation where “[t]he physician who was deposed . . . specifically testified that additional information on the risks associated with [the drug] would not have impacted his decision to prescribe Plaintiff the drug”).

District of Columbia

Dyson v. Winfield, 113 F. Supp.2d 35, 41 (D.D.C. 2000) (no causation where prescribing physician “testified that, had the packaging contained an extra warning as to [the plaintiff’s condition], he still would have prescribed it for the plaintiff”), aff’d, 21 F. Appx. 2 (D.C. Cir. 2001).

Florida

Mason, 27 So.3d 75, supra; Salinero, 995 F.3d 959, supra; Small v. Amgen, Inc., 723 F. Appx. 722, 725 (11th Cir. 2018) (no causation where the prescribing physician “would have taken the same course of action even with the information the plaintiff contends should have been provided”) (citation and quotation marks omitted) (applying Florida law); LaBarre v. Bristol Myers Squibb Co., 544 F. Appx. 120, 125 n.10 (3d Cir. 2013) (no causation where “[b]oth of [plaintiff’s] physicians testified that they still believe [the drug] was an appropriate treatment for [him]”) (applying Florida law); Swintelski v. American Medical Systems, Inc., 521 F. Supp.3d 1215, 1220-21 (S.D. Fla. 2021) (no causation where the prescriber “knowing what he knows today, would have persisted in his decision to prescribe and use the [device] in her operation” and “still would have prescribed and used the [device] in her operation even if he had been in possession of more detailed warnings”), reconsideration denied, 2021 WL 1902233 (S.D. Fla. April 21, 2021); In re Zyprexa Products Liability Litigation, 2009 WL 2004540, at *16 (E.D.N.Y. July 1, 2009) (no causation where prescriber “testi[fied] that, even today, he did not ‘second guess’ the decision to treat plaintiff with [the drug]”), reconsideration denied, 2009 WL 2762233 (E.D.N.Y. Aug. 26, 2009) (applying Florida law); Chase v. Novartis Pharmaceutical Corp., 740 F. Supp.2d 1295, 1298 (M.D. Fla. 2006) (no causation where prescriber “unequivocally state[d] that he would not have changed his prescription decision for Plaintiff . . ., even with the addition of the language now found in the package insert”); McDaniel v. Sofamor Danek Group, Inc., 1999 WL 1062136, at *5 (S.D. Fla. April 9, 1999) (no causation where the implanting surgeon “stated . . . that he would not have made a different treatment choice for [plaintiff] regardless of any new risks revealed after plaintiff’s surgery”).

Georgia

Hubbard, 983 F.3d 1223, supra; Dietz, 598 F.3d 812, supra; Ellis, 311 F.3d 1272, supra; Williams v. Ethicon, Inc., 2021 WL 857747, at *3 (N.D. Ga. March 8, 2021) (no causation where implanting surgeon “affirmatively stated that she would still follow the same course of treatment and perform the [same] surgery”); Jones v. Ethicon, Inc., 2020 WL 5836555, at *6 (M.D. Ga. Sept. 30, 2020) (no causation where implanter testified that “he continued still stood by that decision” to implant the device in plaintiff); Nix v. Ethicon, Inc., 2020 WL 5525172, at *2 (N.D. Ga. Sept. 14, 2020) (no causation where the implanter “testified repeatedly that he stood by his decision to recommend and implant [the device] and that his decision would not have changed even if the . . . IFU had included a more extensive list of risks”); Cessna v. Ethicon, Inc., 2020 WL 2121392, at *5-6 (M.D. Ga. April 2, 2020) (no causation where the implanter “stands by that decision today notwithstanding Plaintiffs’ present claims”); Plott v. Ethicon, Inc., 2020 WL 12948625, at *2 (N.D. Ga. March 23, 2020) (no causation where implanter “testifie[d] that she would take the same course of action now to treat” plaintiff and “confirmed that she stood by her decision to recommend and use [product] for [plaintiff] and that nothing she had heard in her . . . deposition changed her mind”); In re Cook Medical, Inc. IVC Filters Marketing, Sales Practices & Product Liability Litigation, 2018 WL 6415585, at *4 (S.D. Ind. Dec. 5, 2018) (no causation where “nothing about Plaintiff’s experience . . . caused [the implanter] to change his mind about using IVC filters in general or the [defendant’s product] in particular”) (applying Georgia law); Brown v. Roche Laboratories, Inc., 2013 WL 2457950, at *8 (N.D. Ga. June 6, 2013) (“where the doctor has actual knowledge of the risk and would have taken the same course of action even with the warning that plaintiff claims should have been provided, the learned intermediary doctrine bars recovery”); Courson v. Wright Medical Technology, Inc., 2013 WL 5595973, at *10 (M.D. Ga. Oct. 11, 2013) (no causation where the implanter “states that even if he was warned that the . . . device was a prototype, he would have proceeded with the same course of action”); Eberhart v. Novartis Pharmaceuticals Corp., 867 F. Supp.2d 1241, 1254 (N.D. Ga. 2011)  (no causation where plaintiff’s “treating physician testified that she would have prescribed the treatment regardless of the warning, [and] that [the drugs] were and are the standard of care for Plaintiff’s condition”); Porter v. Eli Lilly & Co., 2008 WL 544739, at *11-12 (N.D. Ga. Feb. 25, 2008) (no causation where the prescribing physician “testi[fied] that he would not have treated [the decedent] with a different medication or in a different manner had he known of the risk . . . proffered by Plaintiff’s expert[,] and which is apparently recognized by the more recent warnings”), aff’d, 291 F. Appx. 963, 964 (11th Cir. 2008) (affirming based on “testi[mony] that even if [the prescriber] had read the warning that [plaintiff] asserts should have been given, he still would have prescribed [the drug] to the decedent”); Wheat v. Sofamor, S.N.C., 46 F. Supp.2d 1351, 1363 (N.D. Ga. 1999) (no causation where “[e]ach of the plaintiffs’ treating physicians testified . . . that he would have taken the same course of action in spite of the information Plaintiffs contend should have been provided”); In re Accutane Litigation, 2016 WL 5958375, at *18-20 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified:  “a stronger label would not have changed his ‘prescribing practices’”; even with a stronger warning “she would have likely prescribed [the drug] to Plaintiff”; “with knowledge of all the risks and side effects [the prescriber] would still prescribe [the drug]”; “if Plaintiff were presented to her in the same manner today, she would still prescribe her [the drug] despite what she now knows”) (applying Georgia law).

Hawai’i

None.

Idaho

None.

Illinois

Vaughn v. Ethicon, Inc., 2020 WL 5816740, at *4 (S.D. Ill. Sept. 30, 2020) (no causation where the implanting surgeon “testified that even today he believes the [product] was a safe and appropriate device for [plaintiff]”); In re Zyprexa Products Liability Litigation, 2010 WL 348276, at *10 (E.D.N.Y. Jan. 22, 2010) (no causation where prescribing physician “unequivocally testified that any information available [later] would not have changed his past treatment of Plaintiff”) (applying Illinois law); In re Accutane Litigation, 2016 WL 5958375, at *20-22 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified:  “testified that Defendants’ warning as to [the risk] was accurate”; “repeatedly testified, ‘Yes I would’ when asked whether she would continue prescribing [the drug]”; “stood by her prescribing decision”) (applying Illinois law).

Indiana

Hull v. Ethicon, Inc., 2020 WL 1154577, at *8 (S.D. Ind. March 10, 2020) (no causation because “even if the IFU had included a warning regarding all of the risks associated with the [device, the implanting surgeon] still would have recommended the surgery to [plaintiff]”).

Iowa

Madsen v. American Home Products Corp., 477 F. Supp.2d 1025, 1036 (E.D. Mo. 2007) (“the causal link between Plaintiff’s injury and the alleged failure to warn is broken because the evidence indicates that [the prescribing physician] would have continued to prescribe the . . . drugs even if he had been provided with adequate warnings”) (applying Iowa law).

Kansas

Ralston, 275 F.3d 965, supra; Wright, 259 F.3d 1226, supra; Davis v. Johnson & Johnson, 2022 WL 1566117, at *6-7 (D. Kan. May 18, 2022) (causation failed and heeding presumption rebutted where implanting surgeon “testified that he stood by his decision to offer [the device] to Plaintiff”); Vanderwerf v. SmithKlineBeecham Corp., 529 F. Supp.2d 1294, 1311-12 (D. Kan. 2008) (causation failed and heeding presumption rebutted where plaintiffs’ prescribing physicians “both testified that even with the information which they have today . . ., they would have prescribed [the drug] to [the decedent]”); Miller v. Pfizer, Inc., 196 F. Supp.2d 1095, 1127-28 (D. Kan. 2002) (causation failed and heeding presumption rebutted where the prescriber “stated under oath that even if he had been provided the information and opinions expressed by [plaintiffs’ expert], and received plaintiffs’ additional warnings, he would have prescribed [the drug] for [the decedent] without further warning or instructions”), aff’d, 356 F.3d 1326 (10th Cir. 2004); In re Accutane Litigation, 2016 WL 355843, at *8-9 (N.J. Super. Law Div. Jan. 29, 2016) (no causation where the prescriber “testified that his risk discussion with Plaintiff would not have been any different” and “testified that despite what he knows about [the drug] now, he would still prescribe [it] to Plaintiff today if he was presented in the same manner”) (applying Kansas law).

Kentucky

Terry v. Ethicon, Inc., 2022 WL 468051, at *5 (W.D. Ky. Feb. 15, 2022) (the implanting surgeon “has testified that even with his current knowledge of the [device’s] side effects, he still believes the device is effective and safe for use.  As a result, any inadequacy of [defendant’s] warnings did not proximately cause [plaintiff’s] injuries”); Thacker v. Ethicon, Inc., ___ F. Supp.3d ___, 2021 WL 5362076, at *5-6 & n.1 (E.D. Ky. Nov. 17, 2021) (no causation where implanter “clearly indicated even if he knew at the time of implantation what he knows now, he still believed the devices to be safe and effective with the benefits outweighing the costs,” “stands by his decision,” and “even if he knew then what he knows now, he would not have changed his mind”); Mitchell v. Ethicon, Inc., 2020 WL 4550898, at *6 (E.D. Ky. Aug. 6, 2020) (no causation where the implanter testified that “she stands by her decision to use” the device); Cutter v. Ethicon, Inc., 2020 WL 109809, at *8 (E.D. Ky. Jan. 9, 2020) (no causation where after learning of relevant risks, the implanter “continued to believe that the benefits outweighed the risks”, so “further information” about the risks “would not have affected his decision”), aff’d, 2021 WL 3754245 (6th Cir. Aug. 25, 2021); Clark v. Danek Medical, Inc., 1999 WL 613316, at *6 (W.D. Ky. March 29, 1999) (“At no point did the surgeon suggest that additional information from [defendant] might have caused him to use a different implant or no implant at all”).

Louisiana

Taxotere, 994 F.3d 704, supra; In re Taxotere (Docetaxel) Products Liability Litigation, 2021 WL 1534481, at *4 (E.D. La. April 19, 2021) (no causation and heeding presumption rebutted where prescribing physician “testified that even if the label had warned of [the claimed risk], this would not have affected his decision”) (footnote omitted); In re Taxotere (Docetaxel) Products Liability Litigation, 2021 WL 1534482, at *2 (E.D. La. April 16, 2021) (no causation and heeding presumption rebutted where prescriber testified that “if [plaintiff] came to him today with the same diagnosis, he would still recommend the same . . . regimen that he recommended to her years ago”); In re Taxotere (Docetaxel) Products Liability Litigation, 2020 WL 1819665, at *2-3 (E.D. La. April 7, 2020) (no causation and heeding presumption rebutted where evidence “demonstrated that even with an adequate warning from [defendant, the prescriber] would have decided on [the same] regimen”); Shepard v. Johnson & Johnson, 2019 WL 5585001, at *4 (W.D. La. Oct. 29, 2019) (no causation where prescriber “testified that she stood by her decision to use that product”); Whitener v. PLIVA, Inc., 2014 WL 1276489, at *6 (E.D. La. March 27, 2014) (no causation because “it seems clear to the Court . . . that even knowing everything he knows today, [the prescriber] would have still prescribed [the drug] to [the decedent]”), aff’d, 606 F. Appx. 762 (5th Cir. 2015); Legard v. Ortho-McNeil Pharmaceutical, Inc., 833 F. Supp.2d 775, 780 (N.D. Ohio 2011) (no causation where the prescriber’s “testimony supports the Defendants’ position that no additional information regarding the [product] would have changed the prescriber’s decision to continue use by the Plaintiff”) (applying Louisiana law); In re Zyprexa Products Liability Litigation, 2009 WL 3596526, at *13 (E.D.N.Y. Oct. 16, 2009) (no causation where the prescriber “testified that if a patient today displayed the same symptoms . . ., he would have “no hesitation” in prescribing [the drug]”) (applying Louisiana law); Oliver v. Pharmacia & Upjohn Co., 2008 WL 4691626, at *7 (E.D. La. Oct. 6, 2008) (no causation where “both of Plaintiff’s treating physicians continued to prescribe [the drug] after the [FDA added a] black box warning”); Allgood v. Glaxosmithkline Plc., 2008 WL 483574, at *6 (E.D. La. Feb. 20, 2008) (no causation where “seems clear to the Court that [the prescriber] treats very sick people . . ., and that even knowing everything he knows today, [he] still would have prescribed [the drug] to [the decedent]”); Guidry v. Aventis Pharmaceuticals, Inc., 418 F. Supp.2d 835, 842 (M.D. La. 2006) (no causation given the prescriber’s “testimony that given the circumstances as they were . . ., he took appropriate action to prescribe [the drug] for the plaintiff and he would not change that decision”); Simon v. Baxter Health Care Corp., 1989 WL 101560, at *2-4 (E.D. La. Aug. 31, 1989) (no causation where physician “was shown the [plaintiff’s alternative] and asked ‘Would you have done anything different that day?’ to which he replied, ‘No sir.’”), aff’d mem., 915 F.2d 1569 (5th Cir. 1990); In re Accutane Litigation, 2016 WL 355843, at *9-12 (N.J. Super. Law Div. Jan. 29, 2016) (multiple plaintiffs; no causation where prescribers testified:  they “would still prescribe [the drug] to Plaintiff today if presented to him in the same manner despite what he now knows about [the drug’s] risks and benefits”; “despite what she knows about [the drug] now, she would still prescribe [it] to Plaintiff today if she was presented in the same manner”; or “he would still prescribe Plaintiff [the drug], even knowing what he now knows about the risks and side effect”) (applying Louisiana law).

Maine

Doe v. Solvay Pharmaceuticals, Inc., 350 F. Supp.2d 257, 273-74 (D. Me. 2004) (no causation and heeding presumption rebutted where “then and now, [the prescribing physician] considered [the drug] to be entirely safe and appropriate to prescribe to patients,” and “he continues to prescribe [the drug] to his patients, aff’d, 153 F. Appx. 1 (1st Cir. 2005).

Maryland

Donalds v. Ethicon, Inc., 2021 WL 6126297, at *10 (D. Md. Dec. 28, 2021) (no causation where the implanting physician “stood by her decision to recommend the [device] to [plaintiff]” and “would not have changed her decision to prescribe the [device] after reviewing [plaintiff’s] Risk Chart”); Conway v. American Medical Systems, Inc., 2021 WL 6126293, at *2, 6 (D. Md. Dec. 28, 2021) (no causation where implanter testified that “[a]lthough the . . . device is no longer available, . . . she would still use it if it were,” and “if [plaintiff] presented to her today with the same symptoms and complaints, she would ‘[a]bsolutely’ still have offered her the [device]”); Sackleh v. Johnson & Johnson, 2015 WL 12656837, at *1 (D. Md. Jan. 9, 2015) (no causation given the prescribing physician’s “further testimony that, based upon his diagnosis of plaintiff, he would have prescribed [the drug] for [plaintiff]”); Zimmerman v. Novartis Pharmaceuticals Corp., 287 F.R.D. 357, 362 (D. Md. 2012) (no causation where prescriber testified that “[g]iven what I know today, that there is a possible association between . . . [the drugs at issue in this case] . . . and [the risk], I would still have treated [the decedent] the same”); In re Zyprexa Products Liability Litigation, 2012 WL 2374644, at *9 (E.D.N.Y. June 22, 2012) (no causation where prescriber still “believed that his decision to prescribe the medication to plaintiff was the correct one”) (applying Maryland law); Ames v. Apothecon, Inc., 431 F. Supp.2d 566, 568, 573 (D. Md. 2006) (no causation where prescriber testified that “even today, knowing of the tragedy that befell [plaintiff] and of the arguments advanced by her counsel, he would prescribe [the drug] for a similar patient”); Chambers v. G.D. Searle & Co., 441 F. Supp. 377, 384 (D. Md. 1975) (no causation where “as a result of what [the prescriber] knew and the conclusions he drew from what he knew, it would have made no difference if the warnings were in the form which plaintiff contends would be adequate”), aff’d per curiam, 567 F.2d 269 (4th Cir. 1977).

Massachusetts

In re Neurontin Marketing & Sales Practices & Products Liability Litigation, 2010 WL 3169485, at *4 (D. Mass. Aug. 10, 2010) (no causation where prescribing physician “believes his prescribing of [the drug] to the plaintiff was completely appropriate”).

Michigan

None.

Minnesota

Kapps v. Biosense Webster, Inc., 813 F. Supp.2d 1128, 1158 (D. Minn. 2011) (no causation because “[w]ith that knowledge, [the implanting surgeon] has not changed his behavior after [plaintiff’s] procedure.  It follows that [the surgeon’s] receipt of that knowledge before [plaintiff’s] procedure . . . would not have changed [the surgeon’s] behavior”) (emphasis original); In re Orthopedic Bone Screw Litigation, 1999 WL 628688, at *8-11, 15 (D. Minn. March 8, 1999) (multi-plaintiff case; no causation where implanters “continue to regularly perform surgeries involving [the devices]”; “continues to use [the devices] . . . because he believes that the benefits to his patients outweigh the complications”; “continued to use [the devices] after [plaintiff’s] surgery and continues to have a favorable opinion of their effectiveness based on his experience”, and “believes that his ability to treat his patients would be greatly reduced if he were unable to use [the devices], and he continues to use them . . . despite their attendant risks”), aff’d without opinion, 221 F.3d 1343 (8th Cir. 2000); Bruzer v. Danek Medical, Inc., 1999 WL 613329, at *6 (D. Minn. March 8, 1999) (no causation given implanter’s” testimony that he would have recommended [the devices] regardless of the existence or content of any warnings provided by the Defendants”); Greiner v. Sofamor, S.N.C., 1999 WL 716891, at *5 (D. Minn. March 8, 1999) (no causation where the implanter testifies that he “would render the same recommendation to [plaintiff] today that he did” when he performed the surgery).

Mississippi

Thomas, 949 F.2d 806, supra; In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 2016 WL 7332760, at *3 (M.D. Ga. Dec. 15, 2016) (no causation where implanting surgeon “testified that he would use [the device] if it was still available”) (applying Mississippi law); Cross v. Forest Laboratories, 102 F. Supp.3d 896, 905 (N.D. Miss. 2015) (no causation where prescribing physician answered “I don’t think so” to the question “Have you seen any information, any documentation, today − do you have any knowledge about this medicine today as we sit here that would have changed your decision to prescribe [the drug] to [the decedent] when you saw him”); Smith v. Johnson & Johnson, 2011 WL 3876997, at *11 (S.D. Miss. Aug. 31, 2011) (no causation where implanter “continued to hold th[e] opinion on the date of the deposition” that the device “was an appropriate product to use in the treatment of” plaintiff’s condition), aff’d, 483 F. Appx. 909 (5th Cir. 2012); In re Zyprexa Products Liability Litigation, 2011 WL 182489, at *2 (E.D.N.Y. Jan. 20, 2011) (no causation where plaintiff had a “long history of . . . unsuccessful treatment on other medications” and his “prescribing physicians testified that none of the information they have since learned about [the drug] would have changed their treatment”) (applying Mississippi law); Windham v. Wyeth Laboratories, Inc., 786 F. Supp. 607, 612-13 (S.D. Miss. 1992) (no causation where prescriber “testified that even if he had had the additional information contained in the revised direction circular, that he still would have prescribed [the drug]”); In re Accutane Litigation, 2016 WL 5958375, at *23-, *34-48 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified:  “that he continues to prescribe [the drug]”; “he would have prescribed [the drug] again to the Plaintiff”; “with all he has learned about the risks of [the drug], he continues to prescribe and would have to Plaintiff”) (applying Mississippi law).

Missouri

Vaughn v. Ethicon, Inc., 2020 WL 5816740, at *4 (S.D. Ill. Sept. 30, 2020) (no causation where the implanting surgeon “testified that even today he believes the [product] was a safe and appropriate device for [plaintiff]”) (applying Missouri law); Abt v. Ethicon, Inc., 2020 WL 4887022, at *1, 3 (E.D. Mo. Aug. 20, 2020) (no causation and heeding presumption rebutted where implanter “testified additional warnings by [defendant] would not have changed his decision to prescribe” and that “he stands by his prescribing decision”); Carr-Davis v. Bristol Myers-Squibb Co., 2013 WL 322616, at *8-9 (D.N.J. Jan. 28, 2013) (no causation and heeding presumption rebutted where the prescribing physician “reaffirmed this decision by testifying that he continues today to prescribe [the drug] to patients with circumstances similar to [the decedent]”) (applying Missouri law); Skibniewski v. American Home Products Corp., 2004 WL 5628157, at *5 (W.D. Mo. April 1, 2004) (no causation where the prescriber “would have prescribed [the drug] even if the label change had been in effect at the time of the original prescription”); In re Accutane Litigation, 2016 WL 5958375, at *26-28 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “he continued to prescribe [the drug] until he retired”; “‘knowing everything you currently know about [the drug]’ he would still recommend it to Plaintiff”; “he would prescribe [the drug] to Plaintiff if presented in the same manner today despite what he now knows about the drug and its risks and side effects”; “when confronted with various warning scenarios, he confirmed he would have still prescribed [the drug]”) (applying Missouri law);

Montana

None.

Nebraska

McElroy v. Eli Lilly & Co., 495 F. Appx. 166, 168 (2d Cir. 2012) (applying Nebraska law) (no causation where one prescribing physician “continued [to prescribe] for more than two years after the medical community knew or should have known about the drug’s risks” and a second “testified that he was fully aware of the . . . risks associated with [the drug] but nonetheless continued to prescribe . . . and had even increased the dosage”); Ideus v. Teva Pharmaceuticals USA, Inc., 361 F. Supp.3d 938, 946 (D. Neb. 2019) (no causation “when a physician . . . would have taken the same course had warnings been communicated”), aff’d, 986 F.3d 1098 (8th Cir. 2021); In re Accutane Litigation, 2016 WL 5958375, at *28-31 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  after “stud[ying] available scientific literature[,] he left no doubt that he would have still recommended [the drug] to Plaintiff”; “he would prescribe [the drug] to Plaintiff if he were presented in the same manner today despite what he now knows about [it] and its risks and side effects”; “given what he knows of the warning(s) and Plaintiff’s [condition] he would still have prescribed [the drug]”).

Nevada

None.

New Hampshire

None.

New Jersey

Strumph, 626 A.2d 1090, supra; Baker v. App Pharmaceuticals LLP, 2012 WL 3598841, at *9 (D.N.J. Aug. 12, 2012) (no causation and heeding presumption rebutted where prescribing physician “stood by his decision to administer [the drug] to [plaintiff]”); Appleby v. Glaxo Wellcome, Inc., 2005 WL 3440440, at *5-6 (D.N.J. Dec. 13, 2005) (no causation, “Also compelling is [the prescriber’s] testimony that he would continue to prescribe the medication at the time of his deposition, well after [the drug] was temporarily removed from the market”); In re Accutane Litigation, 2016 WL 5958375, at *36-39 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “were he practicing medicine today,” he would “absolutely” still prescribe [the drug]”; “notwithstanding everything he’s learned arising subsequent to litigation, he still prescribes [the drug]”; “given what she knows, and Plaintiff presenting ‘with the same . . . condition,” she would still prescribe [the drug]”); see id. at *8-32, *39-48 (alternatively, New Jersey law applied to out-of-state plaintiffs discussions in Alabama, Arizona, Colorado, Georgia, Illinois, Mississippi, Missouri, New Jersey, New York, Ohio, Oklahoma, South Carolina, and Virginia); In re Accutane Litigation, 2016 WL 355843, at *7-8 (N.J. Super. Law Div. Jan. 29, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “knowing of the risks and side effects of [the drug] would ‘never prevent’ her from prescribing [the drug] to a patient”; “even with alternatively proposed language she would have prescribed [the drug] to this Plaintiff and risk discussions would have been the same”) (applying New Jersey law) (also New Jersey law applied alternatively to out-of-state plaintiffs; see discussions in California, Kansas, Louisiana, and Texas); Apel v. Johnson & Johnson, 2014 WL 10176352, at *17 (N.J. Super. Law Div. July 25, 2014) (no causation where “each prescribing physician would still prescribe [the drug] to [plaintiff] today”); In re NuvaRing Litigation, 2013 WL 1874321, at *22 (N.J. Super. Law Div. April 18, 2013) (no causation and heeding presumption rebutted where the prescriber “testified . . . that she continues to prescribe [the device], and at the time she prescribed it to [plaintiff], she was aware” of the risk).

New Mexico

Silva, 2013 WL 4516160, supra; Nowell v. Medtronic, Inc., 372 F. Supp.3d 1166, 1236 (D.N.M. 2019) (“any alleged inadequacy of the manufacturer’s warning [i]s not, as a matter of law, the proximate cause of the plaintiff’s injuries where the physician testified he would have prescribed the drug even if the warnings had been different”); In re Trasylol Products Liability Litigation, 2011 WL 2586218, at *5 (S.D. Fla. June 22, 2011) (no causation where the prescribing physician “was presented with studies and FDA reports . . ., and he consistently testified that he viewed them ‘with a grain of salt’”; had the allegedly withheld information been properly disclosed to [the prescriber], the disclosure would not have changed [his] prescribing decision”) (applying New Mexico law).

New York

Rouviere v. Depuy Orthopaedics, Inc., 560 F. Supp.3d 774, 799 (S.D.N.Y. 2021) (no causation where the implanting surgeon “testified that he planned to continue using the [defendant’s device] even knowing what he knows now”); Webb v. Zimmer, Inc., 2019 WL 438361, at *16 (E.D.N.Y. Feb. 4, 2019) (no causation where implanter “continued to use the Product for his [the same surgery], long after the Plaintiff was [injured].  To this day, [he] remains confident in the product”) (citation omitted); In re Plavix Marketing, Sales Practices & Products Liability Litigation No. II, 2017 WL 3531684, at *7 (D.N.J. Aug. 17, 2017) (no causation where prescribing physician “testified that having reviewed all the relevant studies regarding [the drug] he believes − even now − that prescribing [it] to [plaintiff] was the most appropriate medical therapy”) (applying New York law); McDowell v. Eli Lilly & Co., 58 F. Supp.3d 391, 409 (S.D.N.Y. 2014) (no causation where prescriber “testified that a different warning containing the information Plaintiff alleges was missing from the [drug’s] labeling would not have changed her decision to prescribe [it] to the Plaintiff”), reconsideration denied, 2015 WL 845720 (S.D.N.Y. Feb. 26, 2015), and 2015 WL 4240736 (S.D.N.Y. July 13, 2015); Krasnopolsky v. Warner-Lambert Co., 799 F. Supp. 1342, 1347 (E.D.N.Y. 1992) (no causation where prescriber “testified that he was fully aware of the possibility of adverse . . . reactions as a side effect of [the drug], and that he would have nevertheless prescribed [it] for [plaintiff]”); Gentile v. Biogen Idec, Inc., 2016 WL 9820093, at *6-7 (Mass. Super. July 25, 2016) (no causation where plaintiff’s prescribing physician “indicated in her deposition, the absence of warnings about the three risk factors . . . would not have altered her decision to prescribe [the drug]] to [the decedent]”) (applying New York law); In re Accutane Litigation, 2016 WL 5958375, at *32, *34-35 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “he would still prescribe [the drug] in the future without [plaintiff’s language] appearing in the warning”; “a change in the label as discussed by counsel would not ‘have made a bit of difference’ in how he prescribed [the drug] to his patients”; “even given the proposed warning, she would prescribe [the drug]”; “would prescribe [the drug] to Plaintiff today if he were presented in the same manner despite what he now knows about [the drug] and its risks and side effects”; “regardless of what he had learned at deposition, he still would have prescribed [the drug] to Plaintiff”; “a label change would not have altered his decision to prescribe”) (applying New York law).

North Dakota

Ehlis, 367 F.3d 1013, supra.  Note:  In In re Accutane Litigation, 2016 WL 5958375, at *36-39 (N.J. Super. Law Div. Oct. 12, 2016) (summary judgment was entered for similar reasons against several North Dakota plaintiffs, but the decision applied New Jersey law).

North Carolina

Carlson v. Boston Scientific Corp., 2015 WL 5732107, at *3 (W.D.N.C. Sept. 30, 2015) (no causation where the implanting surgeon “testi[fied] that notwithstanding what he knew about the potential risks, implantation of the . . . device was the appropriate treatment for [plaintiff]”) (footnote omitted), aff’d, 856 F.3d 320 (4th Cir. 2017).

Ohio

Miller v. Alza Corp., 759 F. Supp.2d 929, 936-37 (S.D. Ohio 2010) (no causation and heeding presumption rebutted where prescribing physician “testified unequivocally that he would have prescribed the [product] even if specifically warned”); In re Accutane Litigation, 2016 WL 5958375, at *39-43 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “regardless of the language, he understood there was an association and still would have prescribed [the drug] to Plaintiff”; was “emphatic that he wouldn’t hesitate to prescribe [the drug] to a patient with” the same condition as plaintiff; “a labeling change would not have altered his decision to prescribe [the drug] to Plaintiff”; “he would still prescribe [the drug] to Plaintiff if he were presented in the same manner today despite what he now knows about the drug and its risks and side effects”; “he would still prescribe Plaintiff [the drug] today”; “said ‘yes’ repeatedly, he would still prescribe [the drug]”; “he would prescribe [the drug] to a patient today if there were presented in the same manner as Plaintiff at the time”) (applying Ohio law); In re NuvaRing Litigation, 2013 WL 1874321, at *38 (N.J. Super. Law Div. April 18, 2013) (no causation and heeding presumption rebutted where prescriber testified “that he does not feel differently about [the device] and continues to prescribe it even after learning anything he has about it since prescribing it to the Plaintiff”) (applying Ohio law).

Oklahoma

Eck, 256 F.3d 1013, supra; Ingram v. Novartis Pharmaceuticals Corp., 888 F. Supp.2d 1241, 1245 (W.D. Okla. 2012) (no causation and heeding presumption rebutted where prescribing physician “testified that had he known of [the drug’s] potential complication of osteonecrosis of the jaw, he would have prescribed it for [plaintiff] anyway; Stafford v. Wyeth, 411 F. Supp. 2d 1318, 1321 (W.D. Okla. 2006) (no causation and heeding presumption rebutted where prescriber “ was unequivocal in his recent deposition testimony in this case:  based on plaintiff’s [characteristics], if [the drug] were available today, he would prescribe it to her”); Woulfe v. Eli Lilly & Co., 965 F. Supp. 1478, 1485-86 (E.D. Okla. 1997) (no causation and heeding presumption rebutted where prescriber “would have prescribed [the drug] even if the information from the [foreign] package insert had been available to him”); In re Accutane Litigation, 2016 WL 5958375, at *8-32, *34-48 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “a different warning would not have altered the protocol he used when prescribing [the drug]”; “he would still prescribe Accutane to Plaintiff today and that he understood the risk of IBD at the time he prescribed Accutane to Plaintiff”) (applying Oklahoma law).

Oregon

Parkinson v. Novartis Pharmaceuticals Corp., 5 F. Supp.3d 1265, 1273-74 (D. Or. 2014) (“numerous courts have held an allegedly deficient warning from a prescription product’s seller cannot be the proximate cause of the plaintiff’s injuries when a prescribing physician would still take the same course of action if he or she had been differently or ‘more adequately’ warned) (collecting cases).

Pennsylvania

Lineberger, 894 A.2d 141; supra; Bock v. Novartis Pharmaceuticals Corp., 661 F. Appx. 227, 232-33 (3d Cir. 2016) (no causation where evidence showed “that, even to this day, the doctors would not have managed [plaintiff’s] treatment any differently”) (applying Pennsylvania law); In re Avandia Marketing, Sales Practices & Products Liability Litigation, 639 F. Appx. 874, 879 (3d Cir. 2016) (no causation where prescribing physician “unequivocally testified that he would prescribe [the drug] today to a patient who presented as [plaintiff] did”) (applying Pennsylvania law); In re Zyprexa Products Liability Litigation, 2012 WL 252838, at *9 (E.D.N.Y. Jan. 26, 2012) (no causation where prescriber “testified that, despite the risks of [the drug], he believed that his decision to prescribe the medication to plaintiff was the correct one,” and that “[h]e continues to prescribe [the drug] today in cases in which he believes that the benefits of doing so outweigh the risks posed by the use of the medication”) (citations omitted) (applying Pennsylvania law); Owens v. Wyeth, 2009 WL 3244890, at *?? (Pa. C.P. Aug. 17, 2009) (no causation where prescriber “unequivocally testified that recognizing all the risks associated with [the drug], . . . he still would have prescribed [it] to [plaintiff]”), aff’d mem., 6 A.3d 572 (table), 2010 WL 2965014, at *4-5 (Pa. Super. 2010) (adopting trial court’s reasoning); Cochran v. Wyeth, Inc., 2009 WL 6411752, at *?? (Pa. C.P. July 15, 2009) (no causation where prescriber “continued to prescribe [the drug] to all his patients even when [its] label stated [what plaintiff claimed was] the risk”).

Puerto Rico

None.

Rhode Island

In re Zyprexa Products Liability Litigation, 277 F.R.D. 243, 250-51 (E.D.N.Y. 2011) (no causation where prescribing physician “testified that, despite the risks of [the drug], he believed that his decision to prescribe the medication to plaintiff was the correct one”), aff’d, 503 F. Appx. 70 (2d Cir. 2012) (applying Rhode Island law).

South Dakota

None.

South Carolina

Odom, 979 F.2d 1001, supra; Carnes v. Eli Lilly & Co., 2013 WL 6622915, at *5-6 (D.S.C. Dec. 16, 2013) (no causation where prescribing physician testified that “he still would have prescribed [the drug] for [plaintiff] had he been presented with a stronger warning”); In re Accutane Litigation, 2016 WL 5958375, at *45 (N.J. Super. Law Div. Oct. 12, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “a different warning would not alter his decision to prescribe [the drug]”) (applying South Carolina law).

Tennessee

Ponthieux v. Danek Medical, Inc., 1999 WL 33486689, at *7 (W.D. Tenn. May 28, 1999) (no causation where implanting surgeon testified that the device was “within the standard of care,” its “benefits outweighed the risks,” and “I believe in [plaintiff]’s case he obtained an excellent result”).

Texas

Centocor, 372 S.W.3d 140, supra; Guzman, 20 S.W.3d 717, supra; Medrano, 28 S.W.3d 87, supra; Ackermann, 526 F.3d 203, supra; Clowe v. Ethicon, Inc., 2022 WL 799652, at *8-9 (N.D. Tex. March 16, 2022) (no causation where implanting surgeon “testified . . . that, even had he received adequate or different warnings regarding adverse effects of the . . . device, it would not have changed his mind regarding the desired treatment for [plaintiff]”); Gutierrez v. Ethicon, Inc., 535 F. Supp.3d 608, 631 (W.D. Tex. 2021) (no causation where implanter testified that:

knowing everything he knows today, i.e., all of the [device’s] additional potential risks, he would still prescribe [it] . . . he does not second guess his decision to prescribe [the device] to [plaintiff] . . . despite learning of its additional risks, he still would have presented it to her today as a viable option, . . . he still would have done that procedure knowing all that I know today . . ., [and] he has no reason to conclude, even today, that [the device] is not the gold standard for treating [plaintiff’s condition])

(citations and quotation marks omitted); Labiche v. Johnson & Johnson, 2021 WL 3719554, at *1 (S.D. Tex. Aug. 19, 2021) (no causation where implanter “stood by her decision to use the [device] even if she had the knowledge she has today”); Hammett v. Ethicon, Inc., 2017 WL 1015848, at *3 (S.D.W. Va. March 15, 2017) (no causation where implanter “stated . . .3 that knowing what he knew today in practice, he still would recommend [the device] to [plaintiff]”) (applying Texas law); Wolfe v. Ethicon, Inc., 2017 WL 2954274, at *3 (S.D.W. Va. Jan. 20, 2017) (no causation where implanter testified “that . . . there were not a lot of treatment options available for a young woman like [plaintiff], and he felt ‘more comfortable using [the device] than not using [anything] at all”) (applying Texas law); Fox v. Ethicon, Inc., 2016 WL 3748509, at *3 (S.D.W. Va. July 8, 2016) (no causation where implanter “testified that, even if he had received an adequate warning regarding any [of plaintiff’s asserted risks], such warnings would not have changed his mind regarding his desired course of treatment for [plaintiff]”) (applying Texas law); Solomon v. Bristol-Myers Squibb Co., 916 F. Supp.2d 556, 569 (D.N.J. 2013) (no causation where prescribing physician “reiterated that he would not have prescribed anything different to Plaintiff knowing what he knows about [the drug] today”) (applying Texas law); Koenig v. Purdue Pharma Co., 435 F. Supp.2d 551, 555-56 (N.D. Tex. 2006) (no causation where prescriber “testified that none of the information shown to him since he last prescribed [the drug] would have changed his mind about prescribing it for [plaintiff]”); Gerber v. Hoffmann-La Roche, Inc., 392 F. Supp.2d 907, 920-21 (S.D. Tex. 2005); (no causation where “a different warning would not have changed [the prescriber’s] decision to prescribe [the drug] to [his patient] at the time he did so”); Dyer v. Danek Medical, Inc., 115 F. Supp.2d 732, 741-42 (N.D. Tex. 2000) (no causation where “after the [allegedly missing information] had been brought to his attention, [the implanter] was still performing . . . surgeries employing [the] devices”) (footnote omitted); In re Norplant Contraceptive Products Liability Litigation, 955 F. Supp. 700, 710-11 (E.D. Tex. 1997) (no causation where “all five of the prescribing physicians testified unequivocally that none of the information shown to them . . . would have changed their minds about whether to prescribe [the device] for their patients, including the plaintiffs”), aff’d, 165 F.3d 374 (5th Cir. 1999); In re Accutane Litigation, 2016 WL 355843, at *17-24 (N.J. Super. Law Div. Jan. 29, 2016) (multiple plaintiffs; no causation where prescribers testified that:  “he would still prescribe [the drug] to Plaintiff today knowing what he now knows”; “despite what he knows about [the drug] now, he would still prescribe [it] to Plaintiff today if he was presented in the same manner”) (applying Texas law).

Utah

In re Avandia Marketing, Sales Practices & Products Liability Litigation, 746 F. Appx. 122, 124 (3d Cir. 2018) (no causation where “if he possessed this information at that time [the prescribing physician] said he would have made the same choice to prescribe the drug to [plaintiff]”) (applying Utah law); Jeffries v. C.R. Bard, Inc., 2018 WL 700799, at *4 (S.D.W. Va. Feb. 2, 2018) (no causation where the implanting surgeon “testified during his deposition that, if he had been given additional information about the risks of using the [device], he still would have recommended it to her”) (applying Utah law).

Vermont

None.

Virginia

Stanback, 657 F.2d 642, supra; Bailey v. Ethicon, Inc., 2021 WL 2345357, at *1, 6 (W.D. Va. June 8, 2021) (no causation where implanting surgeon “stands by his decision to treat [plaintiff] with the [device]”); In re Accutane Litigation, 2016 WL 5958375, at *8-32, *34-48 (no causation where prescribing physician “confirms that if the warning was changed, he still would have prescribed [the drug]”) (N.J. Super. Law Div. Oct. 12, 2016) (applying Virginia law).

Washington

Luttrell v. Novartis Pharmaceuticals Corp., 555 F. Appx. 710, 711 (9th Cir. 2014) (no causation where “the prescribing physician resumed [plaintiff’s] treatment [with the drug] after his development of [his injury] and after the filing of this lawsuit”); Rodman v. Ethicon, Inc., 2021 WL 2434521, at *5 (W.D. Wash. June 15, 2021) (no causation where implanting surgeon “testified that she stands by her decision to recommend the [device] device to [plaintiff]” and “that she would have still recommended the [device] if adequately warned of the risks”).

West Virginia

Smallridge v. Johnson & Johnson, 2022 WL 1417313, at *4 (N.D.W. Va. Jan. 31, 2022) (no causation because “when asked, . . . years after the surgery, if he stood by his ‘decision to implant [plaintiff] with [the device] . . ., [the implanting surgeon] replied unequivocally that he did: ‘Yes, absolutely.’”); Mullins v. Ethicon, Inc., 2017 WL 319804, at *2 (S.D.W. Va. Jan. 20, 2017) (no causation where implanter testified “that any other warning would not have altered her decision to perform the surgery on [plaintiff]”).

Wisconsin

Stupak v. Hoffman-La Roche, Inc., 2007 WL 4218982, at *1 n.1 (M.D. Fla. Nov. 29, 2007) (no causation where prescribing physician “testi[fied] that he would have still prescribed [the drug] notwithstanding additional warnings or information regarding its potential to cause” the risk alleged by plaintiff), aff’d, 326 F. Appx. 553 (11th Cir. 2009) (applying Wisconsin law); Yakich v. C.R. Bard, Inc., 2016 WL 743476, at *12 (N.J. Super. Law Div. Feb. 19, 2016) (no causation where the implanting surgeon “testified that she was aware of the risks Plaintiff has alleged led to his injury at the time of surgery and she would still use the [device] if presented with Plaintiff today”) (applying Wisconsin law).

Wyoming

None.

Given all of this precedent, once again, it’s no surprise that we love – and plaintiffs hate – the learned intermediary rule.