We are back in the trenches today after spending a wonderful day in New York with our lifelong best friend, in yet another of the blissfully endless celebrations of the milestone birthday we marked in December. We saw “The Band’s Visit,” a new musical based on a 2007 movie about eight members of an Egyptian police orchestra stranded overnight in a remote Israeli town.  The band members accept a local resident’s invitation to bunk overnight in her café, setting the stage for lovely intersections of hearts, minds, and cultures.  It is short, sweet, and very satisfying.

As is today’s case, for those of us who defend prescription drug and device manufacturers. In Kwasniewski v. Sanofi-Aventis, LLC, 2018 WL 1567851 (D. Nev. Mar. 30, 2018), the plaintiffs alleged that the defendant’s prescription sleep medication caused their decedent to commit suicide.  The opinion includes the judge’s decisions on objections to several earlier rulings by the magistrate judge and her decision on the defendant’s motion to dismiss the plaintiffs’ design defect claims.

Objections to Magistrate’s Rulings

First, the plaintiffs objected to the magistrate’s refusal to stay discovery – and relieve the plaintiffs of their obligation to respond to the defendant’s pending discovery requests – while the defendant’s Motion to Dismiss was pending. The court agreed with the magistrate, emphasizing that “[t]he Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery when a potentially dispositive motion is pending.” Kwasniewski, 2018 WL 1567851 at *2.

Second, the plaintiffs objected to the magistrate’s application of Nevada’s learned intermediary doctrine.   In a 30(b)(6) deposition notice, the plaintiffs included topics concerning “information about direct to consumer advertising.”  Because, under the learned intermediary doctrine, the defendant had a duty to warn only “medical experts, not consumers, about the dangers of [its prescription drug],” id. at *4, the magistrate ruled that deposition testimony about direct-to-consumer advertising was irrelevant.  As such, she limited the plaintiffs’ Rule 30(b)(6) deposition topics to the defendant’s “representations to the medical community.”  The plaintiffs argued that the magistrate had “effectively decided a dispositive motion” by applying the learned intermediary doctrine, and that the doctrine was an affirmative defense that had not yet been pled.  The court again affirmed the magistrate and barred the plaintiffs from discovering information  that the defendant had disseminated directly to consumers. We like this ruling and applaud the court’s adherence to the standard imposed by Fed. R. Civ. P. 26, requiring discovery to be “relevant to [a] party’s claim or defense and proportional to the needs of the case,” and its refusal to sanction a meaningless and abusive fishing expedition.

Defendant’s Motion to Dismiss

The defendant moved to dismiss the plaintiffs’ design defect claims sounding in both strict liability and negligence, arguing that “any claim that [the defendant] should have changed the formulation of [the product] or that the product should simply not have been marketed are preempted by Federal Law.” Id. at *5.  In their response, the plaintiffs conceded that they were “not arguing that that [the defendant] should have reformulated the drug – just simply that [the defendant] should have” included adequate warnings of the drugs alleged suicidality risk. Id. As such, the court was able to grant the defendant’s motion, and foreclose the plaintiff’s from alleging a design defect claim at a later date, without addressing the preemption argument.. (Given this court’s clear-headed, correct-leaning rulings, we suspect that its preemption decision would have been fun to read.)

Kwasniewski is a tidy, no-nonsense, defense-friendly opinion.. If, on this beautiful spring day, we are confined to an office and not roaming the Great White Way, we are pleased that this case crossed our desk.

Happy birthday, Louise Fletcher, who won an Academy Award for her portrayal of the sadistic Nurse Ratched in One Flew Over the Cuckoo’s Nest (1975).  Happy birthday also to Albert Brooks, writer/director/star of Modern Romance (1981), Lost in America (1985), Defending Your Life (1991), and a gaggle of other comedies.  Brooks also did fine work as an actor in several non-comedies, such as Taxi Driver (1976), Broadcast News (1987), and Drive (2011).  But for our money, his best performance is in Out of Sight (1998), where Brooks played a Michael Milken-esque financier-turned-prison-inmate.  By the way, Brooks’ birth name was Albert Einstein.  Brooks changed his name for obvious reasons.  He cracked that the great physicist had changed his name to Albert Einstein simply to sound smart.  Finally, happy birthday to Don Henley of The Eagles.  Henley sang and co-wrote “Hotel California” (1977), an allegory about SoCal showbiz excess.  The best line in the song is “We are all just prisoners here of our own device.”

Does that trio of birthdays suggest a theme?  Indeed, it does:  drugs and prisoners.  Today’s case is Flowers v. Eli Lilly & Co., 2015 U.S. Dist. LEXIS (D. Nevada July 10, 2015), in which a pro se plaintiff prisoner claimed that Zyprexa gave him diabetes.  The plaintiff had been prescribed Zyprexa at the beginning of his incarceration in 1997, went off it in 2003, and then back on it in 2009, continuing up through the filing of the lawsuit in 2014.  The plaintiff was diagnosed with diabetes in November 2012.  After learning of the diagnosis, the plaintiff requested that he be taken off Zyprexa.  The request was denied.  Remember, the plaintiff was a prisoner.  Patient choice seldom matters from a legal point of view in these cases (because of the learned intermediary doctrine, discussed below), but in this case it really, really does not matter. Zyprexa is an antipsychotic drug that can be used to treat very serious conditions such as schizophrenia and bipolar disorder.  The court’s opinion does not tell us why the prison wanted the plaintiff to be on an antipsychotic, but odds are there was a very good reason.

Continue Reading Little Reprieve for Prisoner Zyprexa Suit

Happy birthday, Justice Sotamayor.  Her autobiography, My Beloved World, is now in paperback and the Justice has been all over the airwaves for the inevitable promotional push.  Every time we see Justice Sotamayor interviewed, we like her more.  We learned that she shops at Costco, where she recently ran into Secretary Clinton, who was signing copies of her own book.  That makes us think that Justice Sotomayor is a real, down-to-earth person.  She is also smart and direct.  She reminds us of the old adage that the most effective politicians are tough liberals and cuddly conservatives.  Sotamayor was a prosecutor for a while, so we confess to harboring an undeniable bias in her favor.  She also makes a point of admitting her fallibility up front.  She points to retired Justice Stevens and his acknowledgment that he regrets some of his opinions and would now write them differently.  She says she fully expects to feel the same way about her judicial oeuvre in 20 years.

We do not have to wait so long to regret Justice Sotamayor’s opinions in an area close to our heart, FDA preemption.  Those opinions make for unpleasant reading. Luckily, they are dissents.  Justice Sotamayor wrote lengthy dissents in the Mensing and Bartlett cases.  Those dissents seem to turn on two fundamental notions: (1) hostility to conflict preemption, with a conviction that there is a conflict only when compliance with both federal and state law is impossible not only in a practical sense, but in a complete, almost metaphysical sense.  One gets the distinct impression that in Justice Sotamayor’s world view, it would be pretty much impossible for a manufacturer to show impossibility preemption. (2) Justice Sotamayor is irked that purchasers of generic products might be ousted from court while purchasers of branded products could still buy a ticket to the litigation lottery.  Big surprise: we think she is wrong about that, too.  Such distinct treatment of consumers of distinct products is not inherently unfair or illogical.  One could come up with a rational system where consumers could trade lower prices for reduced litigation options. Maybe that is what we have.  We certainly have it with respect to limited tort auto insurance policies.

Continue Reading Ninth Circuit Applies One-Two Punch to Prevent Claims against Brandeds, and Preempt Claims against Generics

While it may not be immediately obvious, the dismissal of pharmacy defendants from drug cases is almost always a good thing. 
The dismissals are often based on the learned intermediary doctrine, which says that a drug manufacturer’s obligation to warn about risks of its prescription medications runs to the doctors, not patients.  The doctrine recognizes the importance of the doctor-patient relationship under which such medications are prescribed.  Pharmacies are not part of that relationship.  So the law avoids putting on them a duty to warn customers about general medication risks.  It could erode the doctor-patient relationship.  Additionally, plaintiff’s lawyers often name pharmacists as defendants to defeat diversity jurisdiction.  So their dismissal, or imminent dismissal, is also a good thing.  It can be the basis for removal. 
We  saw yet another example of this in the Nevada courts, in Baymiller v. Ranbaxy Pharma. Inc., 2012 U.S. Dist. LEXIS 94339 (D. Nev. July 9, 2012).  The plaintiffs sued a whole host of pharmaceutical companies  and two pharmacies.  Id. at *1-3.  One of  the pharmaceutical defendants removed.  Id. at *1.  Once in federal court, the plaintiffs voluntarily dismissed all but one manufacturer and the two pharmacies.  Id. at *9-10.  Those pharmacies moved to dismiss. 
The court granted the motion on the basis of the learned intermediary doctrine:
In Klasch v. Walgreen Co., 264 P.3d 1155 (Nev. 2011), the Nevada Supreme Court addressed the duty of care that a pharmacist owes his or her customers.  Id. at 1156.  In doing so, the Nevada Supreme Court explicitly adopted the learned-intermediary doctrine in the context of pharmacist/customer tort litigation and held that pharmacists have no duty to warn of a prescribed medication’s generalized risks inherent in the prescriptions they fill.  Id. at 1157-59.  This doctrine “prevents pharmacists from constantly second-guessing a prescribing doctor’s judgment simply in order to avoid his or her own liability to the customer.”  Id. at 1159.  However, when a pharmacist has knowledge of a customer-specific risk, the pharmacist has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of the customer-specific risk.  Id. at 1158, 1160.
In this case, the Court grants [the pharmacy’s] motion to dismiss all claims stated against it without leave to amend.  There is nothing in the complaint that alleges that [the pharmacy] had any knowledge of customer-specific risks related to [plaintiff]. As such, [the pharmacist] had no duty to warn [plaintiff] of the generalized risks inherent in her [medications].
Id. at *14-15. 
That’s a pretty good description of it. 
Now, it’s not immediately clear from the opinion that the pharmacies were named as defendants because their residences would defeat diversity jurisdiction.  But we wouldn’t be surprised if they were. 

In any event, the case started out in state court and with two pharmacy defendants.  Now it’s in federal court.  And the pharmacies have been dismissed.  As we said, that’s almost always a good thing.

When you add together the plurality (p. 958 n.16)  and one of the dissents (p. 969) in Allison v. Merck & Co., 878 P.2d 948 (Nev. 1994), there’s a majority in favor of the learned intermediary rule.  Thus, we’ve included Nevada in our post that lists all of the states adopting the rule,  Still, when we have to mix and match like that, there’s a little doubt in the back of our minds that we’re not on as sound ground as we might have liked.

No longer.  In Klasch v. Walgreen Co., ___ P.3d ___, 2011 WL 5878054 (Nev. Nov. 23, 2011), we got a little Black Friday gift from the Nevada Supreme Court.  Without even mentioning Allison, the court formally adopted the rule – this time unanimously – and, in the same case, extended it to pharmacists:

Traditionally, the learned-intermediary doctrine has been used to insulate drug manufacturers from liability in products-liability lawsuits.  Under the learned-intermediary doctrine, a drug manufacturer is immune from liability to a patient taking the manufacturer’s drug so long as the manufacturer has provided the patient’s doctor with all relevant safety information for that drug.  It is then up to the patient’s doctor—who has the benefit of knowing the patient’s specific situation—to convey to the patient any information that the doctor deems relevant.

Jurisdictions adopting the learned-intermediary doctrine in the context of pharmacist/customer tort litigation have put forth a similar rationale:  that between the doctor and the pharmacist, the doctor is in the best position to warn the customer of a given medication’s generalized risks.  Or, viewed more pragmatically, the doctrine prevents pharmacists from constantly second-guessing a prescribing doctor’s judgment simply in order to avoid his or her own liability to the customer.  In this sense, the learned-intermediary doctrine preserves the pharmacist’s role as a conduit for dispensing much-needed prescription medications.

Because we believe that these public-policy considerations are sound, we adopt the learned-intermediary doctrine in the context of pharmacist/customer tort litigation.  Accordingly, Nevada pharmacists have no duty to warn their customers of the generalized risks inherent in the prescriptions they fill.

2011 WL 5878054, at *3 (footnotes to out-of-state learned intermediary cases omitted).

All is not sweetness and light, however, in Klasch – at least not for pharmacies.  The court holds that pharmacies having actual knowledge of a “customer-specific risk” can be liable for not notifying either the doctor or the customer of that risk.  Id. at *5.  Although the facts look pretty bad for the plaintiff (the doctor prescribed with knowledge of the alleged risk, id. at *1), that wasn’t the basis of the pharmacy’s summary judgment motion, so the court reversed while practically inviting the defendant to try again on a fuller record.  Id. at *5-6. 

We have to admit the news has been pretty dreary out of the Nevada Propofol litigation recently.  As far as the state litigation is concerned, we can only hope that the defendants do better on appeal than in the trial court (it would be hard to do worse).

There was some good news, however, from the federal side of the litigation – demonstrating once again the wisdom of removal. At least there won’t be any class action.  See Rader v. Teva Parenteral Medicines, Inc., No. 2:10-cv-00818 (JCM) (RJJ), slip op. (D. Nev. Oct. 5, 2011).

The plaintiff alleged that he was one of over 60,000 patients who had been “exposed to a risk of possible exposure to blood-borne pathogens due to unsafe injection practices” at a certain medical clinic.  Slip op. at 2.  Oddly, but predictably, plaintiff did not sue the actual perpetrators of these “unsafe” practices (who were already criminally prosecuted), but only the makers of the Propofol, who allegedly committed the heinous act of selling the drug in containers of a size approved by the FDA.  The drug was perfectly sterile until the incompetent doctors got ahold of it.

This just shows how kooky litigation has gotten these days.  Doctors don’t sterilize their instruments and who gets sued?  The drug that was used in the procedure.

Very predictably, the putative class representative didn’t allege any injury at all – or even actual exposure – only a “risk” of exposure.  He wanted some sort of testing, slip op. at 3, which was another of the problems with the litigation, since Nevada rejects medical monitoring as a cause of action.  Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001).  See Slip op. at 8.  The only common issue we see is whether the plaintiff should be subject to Rule 11 sanctions.

But we digress.

Class certification was denied on numerous grounds:

(1) The class definition was garbage.  The mere fact of membership in the supposed class could not be determined without an individualized inquiry – indeed, no fewer than five individualized questions had to be answered before class membership alone could be ascertained, which must be some sort of record.  Slip op. at 5-6.

(2) The class representative was inadequate.  Specifically he was a bankrupt who no longer had standing to bring any claims, as they were now the property of the bankruptcy estate.  Slip op. at 6.  We’d be interested to know whether he listed the claim as an asset in his bankruptcy filings, since most plaintiffs we’ve seen in similar situations don’t do that either.

(3) The class representative was doubly inadequate.  Not only was he a deadbeat, but he split his causes of action, opting only for the no-injury claims (that don’t exist under Nevada law), and thus exposing everyone else to losing other claims for more important (if less amenable to class action treatment) injuries.  Slip op. at 6-7.

(4) Common issues did not predominate. There were scads of individual issues:  product exposure, disease exposure, product identification, differences in product characteristics, alternative causation, differing treatments, differing exposures, and damages, to name a few.  Slip op. at 7-8.

(5) Emotional distress damages, as a matter of law, are not amenable to class action treatment.  Slip op. at 9.

We’ll be adding Rader to our ever lengthening cheat sheet of class action denials (federal division).

About a month ago, the Nevada Supreme Court took a look at the so-called “heeding presumption” – and rejected it outright. Rivera v. Philip Morris, Inc., ___ P.3d ___, 2009 WL 1563373 (Nev. June 4, 2009). Not only that, the decision was unanimous. Obviously, given the caption, Rivera wasn’t a drug or device case (which is why we didn’t jump on it right away). But, like drugs and devices, cigarettes have inherent risks that cannot be designed away. So some of the arguments we’ve used against the heeding presumption in drug cases would apply to cigarettes. Indeed, the degree of public knowledge concerning risks in cigarette cases is much greater than in the average drug case. So it may be that cigarettes represent an a fortiori situation.

But an unavoidably unsafe product analysis wasn’t the Nevada Supreme Court did in Rivera. The court didn’t split the baby like some courts have done – limiting the presumption to certain types of products or kinds of situations. Rather, Rivera rejected the heeding presumption entirely, as against all defendants in any case. That’s worthy of our attention, even though the subject matter is outside of our sandbox.

Rivera’s facts aren’t all that unusual; a typical smoking case with allegations of inadequate warnings about the risks of smoking. The defendant tobacco company moved for summary judgment on the warning claim, which was denied. The trial court interposed a heeding presumption, and stated that the defendant had not overcome it. 2009 WL 1563373, at *2. However, since the case was in federal court, Nevada procedure permitted certification of controlling questions of law to the Nevada Supreme Court. That’s what happened with the heeding presumption. Id.

The Rivera court first stated the general rule: “the burden of proving causation can be satisfied in failure-to-warn cases by demonstrating that a different warning would have altered the way the plaintiff used the product or would have prompted plaintiff to take precautions to avoid the injury.” 2009 WL 1563373, at *4. That’s essentially the same standard we use in our drug cases to win summary judgment in learned intermediary cases based upon independent physician knowledge and other doctor-related facts that preclude causation.

The heeding presumption, however, “departs from well-settled and established Nevada law.” Id. It would change the burden of production on warning causation:

Instead of requiring that the plaintiff prove each element of a strict product liability case, a heeding presumption removes the plaintiff’s responsibility to carry the initial burden of production as to the element of causation. A heeding presumption “allow[s] the fact-finder to presume that the person injured by product use would have heeded an adequate warning, if given. Therefore, a heeding presumption shifts the burden of production from the plaintiff to the manufacturer, who must rebut the presumption by proving that the plaintiff would not have heeded a different warning.

Id. (various citations and quotation marks omitted).

The court didn’t want to go there. First, it got rid of a couple of cases plaintiffs advanced by construing them as holding no more than, under the facts, the plaintiffs could have met their burden of proving causation. 2009 WL 1563373, at *5.

Then it turned to the crux of the heeding presumption – the language in Restatement (Second) of Torts §402a, comment j (1965): “[w]here warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Courts adopting the heeding presumption claim, as a some sort of symmetry, that a plaintiff presumptively would have followed a non-existent adequate warning.

That argument, of course, puts the rabbit squarely in the hat, because the comment j language really doesn’t give defendants anything. After all, if the warning is adequate, as the comment, postulates, the defendant doesn’t even need to get to causation to win. The defendant wins because there was nothing wrong with its warning – whether anybody read them or not. That means there’s really no “symmetry” or “corollary” at all. Instead, the heeding presumption effectively gives plaintiffs something of significant value (shifting the burden of, at least, production, on causation) for nothing (cases the defense wins anyway on adequacy of warming).

But we digress.

The Rivera court held that, while it had agreed with other parts of comment j in the past, in Allison v. Merck & Co., 878 P.2d 948 (Nev. 1994), it had not adopted all of comment j, and specifically had not adopted the language about presumed reliance upon warnings. 2009 WL 1563373, at *5 (“the manner in which we have previously cited to comment j indicates that we will not stray from the principle that the plaintiff carries the burden of production of the element of causation”). Coincidentally, Allison is the case where, when the votes of a splintered court are added together, a majority of the court followed the learned intermediary rule.

After discussing Allison, the court in Rivera comes out and says it: “It is a firmly rooted part of Nevada law that the plaintiff in a strict product liability case bears the burden of proving all the elements of his case, including causation.” 2009 WL 1563373, at *6. Rivera cites several other cases from around the country that refuse to adopt the heeding presumption. Id. (citing Riley v. American Honda Motor Co., 856 P.2d 196, 200 (Mont. 1993); DeJesus v. Craftsman Machinery Co., 548 A.2d 736, 744 (Conn. App. 1988); Harris v. International Truck & Engine Corp., 912 So.2d 1101, 1109 (Miss. App. 2005)).

Rivera also rejected the heeding presumption on public policy grounds. It’s basis was somewhat unusual. The court concluded that it didn’t really like warnings very much, and that manufacturers should instead be encouraged to design products differently:

[W]e strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products.

2009 WL 1563373, at *6. We’re not sure how we feel about that rationale, as there are a lot of product risks – in cigarettes, and in prescription drugs – that simply cannot be designed away. That’s what the unavoidably unsafe product concept is all about.

One thing we don’t have any qualms over, however is the court’s alternative policy ground, recognizing that presuming even adequate warnings will be heeded is an out and out fiction:
[I]t is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. Warnings are everywhere in the modern world and often go unread or, where read, ignored.
Id. (citation and quotation marks omitted).

Rivera got us thinking about the heeding presumption generally. We’ve examined it previously, but that was limited to the context of prescription drugs and medical devices. We also discussed Ackermann v. Wyeth, 526 F.3d 203 (5th Cir. 2008), a case both of us had a hand in (it was Herrmann’s case, and Bexis contributed an amicus brief). Ackermann wiped out the heeding presumption in prescription drug cases brought in Texas:

Further, we doubt the Texas Supreme Court would apply such a presumption here, when it would not serve its intended purposes. . . . In the learned-intermediary context, however, it is [the prescriber], not [the plaintiff], who had to testify about his decision to prescribe [the drug. . . .] [T]o “read and heed,” in the context of a learned intermediary, means only that the physician would have incorporated the additional risk into his decisional calculus.

526 F.3d at 213. See also Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 814 (5th Cir. 1992) (no presumption in unavoidably unsafe products because the effect of a presumption on an inherent risk would be to presume that nobody would ever use the product); Lineberger v. Wyeth, 894 A.2d 141, 145, 149-50 (Pa. Super. 2006) (heeding presumption limited to products involuntarily encountered in the course of a plaintiff’s employment).

But while we’ve considered the presumption’s applicability with respect to unavoidably unsafe products, we’ve never considered the existential question of “to heed or not to heed, is there a presumption?” Apologies to The Bard for that one.

We’ll do that now.

As we expected, the Nevada Supreme Court in Rivera cited most of the best cases. In Riley, the Montana Supreme Court methodically shot down the various “policy” arguments that were advanced in support of the heeding presumption:

First, the dissent contends that it is “common sense” that if an adequate warning is given the plaintiff would have read and heeded it. While this might be common sense in an ideal world, our own experience does not support it; warnings are everywhere in the modern world and often go unread or, where read, ignored. We conclude that the presumption is not appropriate running in either direction, to the manufacturer/seller where a warning is given or to a plaintiff where it is not.

856 P.2d at 200. That sounds like “common sense” to us. We don’t read every warning that we encounter – and we’re defense lawyers. Like Riley, we don’t think anybody else does either.

Next, the dissent raises the perceived difficulties involved in requiring a plaintiff to establish the causation element. We note that the evidence required to establish this element is not qualitatively different than other testimony given by a party in support of her or his prima facie case. Concerns that the testimony may be speculative or self-serving and that a plaintiff may die before the testimony is given are not unique to this cause of action.

Id. We’d go a step further. If plaintiffs are inclined to commit perjury in support of possible recovery, that’s no reason at all to reward them by shifting the burden of proof.

Finally, the dissent argues that the presumption is consistent with the policy behind strict products liability. This may be so; so too would many other changes in a plaintiff’s burden of establishing a prima facie case-including the elimination of any burden at all-be consistent with that policy. We are unwilling to shift the respective parties’ burdens in such a fashion. . . . A defendant certainly is in no better position to rebut a presumption which totally excuses a plaintiff from meeting the causation element than a plaintiff is in establishing the causation element as part of the prima facie case.

Id. We’ve seen plaintiffs trot this tired argument out in favor of abandoning any and all legal rules that can preclude recovery. Thus, there are lots of cases that, like Riley, reject it in various contexts. Here’s one we happen to have lying around: Strict liability “policies, however, have not been, and cannot be, applied to remove all forms of restriction imposed upon plaintiffs’ proofs in products liability actions.” Duchess v. Langston Corp., 769 A.2d 1131, 1145 (Pa. 2001) (subsequent remedial measures admissible in strict liability).

In Harris, the court declined to create a heeding presumption in a case involving a truck accident. The court observed that its state supreme court had, in a prior warning causation case (one involving a prescription vaccine), held: “Assuming arguendo that the warning was inadequate, [the plaintiff] still had the burden of showing that an adequate warning would have altered [the doctor’s] conduct.” 912 So.2d 1109 (quoting Wyeth Laboratories, Inc. v. Fortenberry, 530 So.2d 688, 691 (Miss.1988)). This causation standard, Harris held, precluded any heeding presumption:

The fact that our supreme court has ruled on cases where a heeding presumption could easily have been applied to aid the plaintiff in a products liability case and declined to do so indicates to us that the [court] has no intention or desire to adopt or create a heeding presumption as a part of our jurisprudence with respect to product liability cases. Therefore, we decline to create one as well.

Id.

DeJesus, in contrast, was more of a statutory case, involving causation language in the Connecticut product liability statute. The statute, however, was silent about what “proving’ causation entailed. The court held that it did not entail a heeding presumption:

[Plaintiff’s] argument is untenable. The plaintiff, the claimant herein, acknowledges that [the statute] specifically places upon him the burden of proving proximate cause, but then argues that the statute is vague by not providing guidelines as to how a claimant can satisfy this burden. . . . The language of the statute is clear. There was no presumption of proximate cause that arose on the jury’s finding that [defendant] had failed to provide adequate warnings.

548 A.2d at 744.

Beyond the cases cited in Rivera, there’s a lot of law, perhaps predictably, in New York and California.

In New York, “[u]nder well settled law, to prove proximate cause, a plaintiff has the obligation to adduce proof that had a warning been provided, she would have read the warning and heeded it.” Mulhall v. Hannafin, 841 N.Y.S.2d 282, 287 (N.Y.A.D. 2007). Accord Sosna v. American Home Products, 748 N.Y.S.2d 548, 549 (N.Y.A.D. 2002) (“in this State, it remains plaintiff’s burden to prove that defendant’s failure to warn was a proximate cause of his injury, and this burden includes adducing proof that the user of a product would have read and heeded a warning had one been given”); Topliff v. Wal-Mart Stores East LP, 2007 WL 911891, at *43 (N.D.N.Y. March 22, 2007) (no heeding presumption in New York; at most an “inference”); Smallwood v. Clairol, Inc., 2005 WL 425491, at *2 (S.D.N.Y. Feb. 18, 2005) (“plaintiff has the burden to establish “that he would have read and heeded a different warning had one been given”).

In California, all the law’s on the trial court level, but it holds that California would not recognize a heeding presumption. In Motus v. Pfizer Inc., after a lengthy discussion of California precedent, the court summed up:

Given that other no other court applying California law in this context has adopted the presumption, and several courts have failed to do so when the presumption could have been critical, this Court will not apply it here.

196 F. Supp.2d 984, 994-95 (C.D. Cal. 2001), aff’d, 358 F.3d 659 (9th Cir. 2004). Accord Nix v. SmithKline Beecham Corp., 2007 WL 2526402, at *2 (D. Ariz. Sept. 5, 2007) (“California. . .has not adopted a rebuttable presumption that the physician would have heeded an adequate warning”); Latiolais v. Merck & Co., 2007 WL 5861354, at *4 (C.D. Cal. Feb. 6, 2007) (plaintiff “improperly invokes the ‘rebuttable presumption’ doctrine. . ., as no California court had adopted it”), aff’d, 302 Fed. Appx. 756 (9th Cir. 2008); Lord v. Sigueiros, 2006 WL 1510408, at *4 (Cal. Super. April 26, 2006) (concluding that Motus “accurately summarize[s]” California law), aff’d, 2007 WL 4418019 (Cal. App. Dec. 19, 2007) (unpublished).

Elsewhere, courts have concluded that Alabama, Georgia, Minnesota, New Hampshire, South Carolina, and Wisconsin do not recognize the heeding presumption. See Gurley v. American Honda Motor Co., Inc., 505 So.2d 358, 361 (Ala. 1987) (warning cases “cannot be submitted to a jury unless there is some evidence that the allegedly inadequate warning would have been read and heeded and would have kept the accident from occurring”); Porter v. Eli Lilly & Co., 2008 WL 544739, at *11 (N.D. Ga. Feb. 25, 2008) (“there is no indication in Georgia law, however, that it would apply this comment in the manner of a ‘heeding presumption’ that would vitiate the need for a plaintiff to establish proximate cause for her injuries”), aff’d, 291 Fed. Appx. 963 (11th Cir. 2008); Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 925 (8th Cir. 2004) (“Minnesota state courts have not adopted the so-called ‘heeding presumption’”); Wilson v. Bradlees, Inc., 250 F.3d 10, 16 (1st Cir. 2001) (“New Hampshire has not adopted the ‘read and heed’ presumption, and we will not do so on its behalf”); Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (“There is no such presumption under South Carolina law, and we are unwilling to create one”); Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 876 (Wis. App. 2004) (“[e]ven in the event that a warning is inadequate, proximate cause is not presumed”).

So, while there are quite a few states that adopted heeding presumptions – mostly during product liability law’s “free lunch” period in the 1970s and 1980s – there’s hope yet. Rivera demonstrates that, when an appellate court actually takes a hard look at the underpinnings of this spurious presumption, there’s a good chance that it will be rejected.