Various plaintiff-side consortia have taken it into their heads to sue every manufacturer of so-called “novel oral anticoagulants” because these products, gasp, can cause serious, and sometime fatal, bleeding incidents. Fortunately, on the whole the plaintiffs haven’t done so well with these cases – losing almost all the trials – because jurors can be taught
Occasionally we see plaintiff-side experts attempt to opine, to a reasonable degree of medical certainty (or sometimes probability), that one of our clients’ products was a substantial factor – not in “causing” the purported injury, but in “increasing the risk” of that injury occurring. Such an opinion should be a red flag to any of our defense-side colleagues. It means that the plaintiff’s medical causation evidence is downright lousy.
It also means that a summary judgment motion on causation is probably appropriate. Causation allegations based only on “increased risk” are hallmarks of medical malpractice “lost chance” cases, not product liability. “Lost chance” is a medical malpractice concept derived from certain sections of the Second Restatement (§§321 and 323) applicable only where a pre-existing condition, not diagnosed in a timely fashion, gets significantly worse in the interim, and thereby arguably deprives the plaintiff of a “chance” for a cure. A number of courts have considered that “lost chance” to be a cognizable injury and have relaxed causation standards to permit recovery, because “but for” causation is virtually impossible to prove where the pre-existing condition was progressive to start
We have always maintained that, regardless of the validity of “lost chance” causation in medical malpractice, it’s simply not a product liability theory – since in product liability the product must actually have caused whatever injury that the plaintiff claims occurred. We’re thinking about one of our 50-state surveys on this issue, and we invite our readers to chime in on whether they think it would be helpful.
We occasionally blog about motion in limine rulings, but not nearly as often as we read this type of decision. Let’s face it, as blogging material (as opposed to their impact on a particular case) decisions on motions in limine can be pretty boring. You can talk about this; you can’t talk about that. In…