We receive emails from readers fairly regularly. They are usually from other attorneys, sometimes friends or acquaintances sharing their points of view or expanding on things that we may have underplayed or overlooked. Although we don’t spend much time (or really any time) trying to predict when we might hear from others, we have noticed
Local counsel in one of our cases made it clear that unless we wanted to broadcast that we were from out of state, we needed to pronounce Oregon as “Or-gun” not “Or-ah-gone”, and we have tried to remember that tip ever since. But today’s District of Oregon case, Glover v. Avanos Med., Inc., No.
Back in 1997, a Chicago Tribune columnist wrote a hypothetical commencement speech that garnered a lot of attention. Like most commencement speeches, it offered uplifting advice to the bright young minds about to enter the working world. Unlike most, it directed the graduates to wear sunscreen. That suggestion (often wrongly attributed to Kurt Vonnegut) became
We are in New Orleans for the annual DRI Drug & Medical Device Seminar, so we would be remiss if we passed up the opportunity to write on a Louisiana case. The case will sound familiar. We reported six months ago on the dismissal of a case brought by the same plaintiff alleging that benzene
There’s a reason why prescribing physicians and implanting surgeons are called “learned” intermediaries. The law presumes that licensed doctors know what they are doing. That means that prescribers can make risk/benefit analyses to determine what prescription drugs or medical devices their patients need. As part of that process, such physicians necessarily also evaluate what risks they should tell – and not tell − their patients.
One consequence of a physician’s presumed medical competence is that a learned intermediary is within his/her rights to disregard a manufacturer’s warning altogether, to decide that a particular risk was not severe enough to make a difference, or to conclude that such a risk did not exist or was not material in the context of a particular patient’s medical needs. In all of these situations, the prescriber’s independent evaluation of what risks to credit, which to ignore, and which to omit in counseling patients breaks the causal chain of , entitling a manufacturer defendant to judgment on a warning claim concerning such risks. This scenario was the “third hypothetical” in our “Learned Intermediary Rule 201” post back in 2008.Continue Reading Unimpressed Learned Intermediaries Defeat Warning Causation
We don’t know much, but there are a few things we know for sure. One is that when a topic is complex and not within the knowledge of an ordinary lay person, you generally need an expert. A second is that determining the medical cause of a disease is almost always complex and not within
Today we report on two cases involving the learned-intermediary doctrine. One holds that the doctrine applies in the context of clinical trials; the other holds that it applies even when no warning was given by the manufacturer. Both cases highlight the importance of causation in failure-to-warn claims.
Under the learned-intermediary doctrine, which has been adopted
We have two things in common with the petitioner in Mancini v. Commissioner of Internal Revenue, No 16975-13, 2019 Tax Ct. Memo LEXIS 16 (U.S. Tax Ct. Mar. 4, 2019). First, we both will be filing our 2018 tax returns in about a month from now, unless of course Mr. Mancini is more on