You know it’s going to be an interesting ride when the appellate brief reads like a conspiracy theory starter pack. Which is how we read the issues raised on appeal in Thelen v. Somatics, LLC, — F4th –, 2025 WL 2749888 (11th Cir. Sep. 29, 2025): erroneous entry of summary judgment on design defect, erroneous merging of strict liability and negligent failure to warn, erroneous jury instruction on proximate cause, improper statement in closing arguments, and abuse of discretion on excluding fact and expert testimony. It’s a kitchen sink approach to be sure. And the appellate court hit the garbage disposal.
Plaintiff suffered from severe depression and other mental health issues, including multiple suicide attempts. His physician recommended plaintiff undergo electroconvulsive therapy (“ECT”). Over two years, plaintiff received nearly 100 ECT treatments. Thereafter plaintiff was diagnosed with severe memory loss and neurocognitive disorder. He filed suit against the manufacturer of the device used to administer the ECT alleging the usual slate of products liability claims, all of which were premised on defendant’s alleged failure to warn. Several claims were dismissed pretrial, leaving only negligent and strict liability failure to warn. The jury found the warnings that accompanied the product to be inadequate but also concluded that the absence of adequate warnings was not the proximate cause of plaintiff’s injury. On appeal, the Eleventh Circuit had to sort through plaintiff’s laundry list of reasons they should get a mulligan.
First, plaintiff argued that the district court should not have granted summary judgment on his design defect claim. We aren’t sure why the case was filed in Florida, but there was no dispute that Nebraska law applied. Nebraska uses a consumer expectation test for design defect—does the product have “a propensity for causing physical harm beyond that which could be contemplated by the ordinary user or consumer.” Id. at *6. The alleged design defect was that the defendant did not warn the product might cause “brain damage.” However, the labeling did warn of risks to the brain, such as permanent memory loss and prolonged seizures, among many other serious risks including death. Id. So, while the term “brain damage” was not used, plaintiff did not offer any evidence that a “reasonable consumer” would not understand that the risk of “brain damage” is encompassed in the risk of permanent memory loss. One of plaintiff’s own experts even equated the two. Nor was it sufficient for plaintiff, his parents, and his physician to claim they did not understand the product could cause “brain damage.” Plaintiff had to present objective evidence that the ordinary patient would not have understood the risk. His subjective expectations are irrelevant. Id. at *7.
Moreover, “brain damage” is a pretty broad term. But it’s also vague. If the labeling warned of brain damage, one can imagine lawsuits where plaintiffs complain the warning was not specific enough. What does that mean? Memory loss? Seizures? Cognitive decline? So, where the label already warns about those exact things, what more is the company supposed to say? At some point, common sense has to kick in.
Next, plaintiff argued the district court erred in merging his strict liability and negligence claims because both were premised on failure to warn. Nebraska recognizes the “merger of doctrines” that allows the court to adopt a “single theory approach.” Id. Therefore, because the claims are factually identical, the court did not err in merging them. Plaintiff tried to argue that his negligence claim was also based on a failure to test and failure to investigate, but his counsel acknowledged that both theories required proving a failure to warn in order to succeed. Id. at *8.
Plaintiff’s next contention was that the court erred in instructing the jury that to establish proximate cause the plaintiff had to prove “that his prescribing physician would have altered his conduct had adequate warnings and instructions been provided.” Id. Plaintiff tried to argue that the court was wrong to apply the learned intermediary doctrine to causation, as it is only applicable to duty. But plaintiff had no Nebraska authority to support this argument, and federal courts interpreting Nebraska law have concluded the opposite. Id. at *9. Further, during the charge conference, plaintiff’s counsel conceded that the instruction was correct. While later argument technically preserved the issue for appeal, the appellate court found the concession suggestive that the district court was not mistaken and that regardless, plaintiff was not prejudiced by it. Id.
Relatedly, plaintiff argued that defense counsel incorrectly stated the legal standard for proximate cause in his closing argument and that the district court failed to give a curative instruction. Defense counsel said that for plaintiff to succeed he would have to prove that his physician “would not have prescribed ECT” if the warnings included the term “brain damage” instead of “permanent memory loss.” Id. Apparently plaintiff thought there was a significant difference between “would have altered his conduct” and “would not have prescribed.” But what other “altered conduct,” could even be at issue? Again, we are left looking for common sense. But even if there was some error, plaintiff’s counsel failed to object to the statement until after the jury had started its deliberations. So, the issue was waived. Id. at *10.
Which brings us to plaintiff’s challenges to excluded evidence. Plaintiff wanted to introduce a patient consent video featuring his prescribing physician. The district court excluded it finding its probative value outweighed by the potential to mislead and confuse the jury. The video was evidence of the physician’s knowledge, which was already in evidence via his testimony. But, in a learned intermediary case, the focus is on what the defendant disclosed to the doctor, not what the doctor told his patient. Because the video was duplicative and only tangentially relevant to the main issue, the court did not abuse its discretion in excluding it. Id.
Finally, plaintiff argued that the court abused its discretion in excluding the expert testimony of plaintiff’s treating neuropsychologist on medical causation. The expert was not a medical doctor and therefore not qualified to offer a medical causation opinion. Id. at *11. He even conceded his lack of qualifications at his deposition. Further, he did not employ a sound methodology because he failed to rule out alternative causes. Plaintiff’s last-ditch attempt was to argue that as a treater, the witness should have been allowed to offer his opinions as a lay witness. As the court noted, the cause of a neurocognitive injury is not the same thing as “observing a broken jaw or broken arm.” Id. at *12. This is a classic example of a court forcing an expert to stay in his own lane. Not every doctor is that type of doctor.
The bottom line is, that plaintiff was trying to hold defendant liable for not using a vague headline term like “brain damage” which is not a failure to warn. And when both the court and the jury so ruled, plaintiff filed an overreaching appeal that boiled down to “we demand a do-over.” Spoiler: That’s not how litigation works.