We have a couple of updates on the learned intermediary rule in California. We reported to you three months ago on the California Supreme Court’s tweaking of the learned intermediary rule in Himes v. Somatics, and the tweaks were not good. As we wrote back then, the Court did not make any fundamental
Warnings Causation
This Is What The California Supreme Court Did With The Learned Intermediary Rule
The California Supreme Court issued its widely anticipated opinion on the learned intermediary rule the other day, and the opinion is worth the wait. Based on the oral argument (which we reported on here), we did not expect the Supreme Court to enact a fundamental change to the learned intermediary doctrine, and the Court…
California Supreme Court Hears Argument On Learned Intermediary Doctrine
We observed oral argument the other day before the California Supreme Court in Himes v. Somatics, a case that places California’s learned intermediary doctrine squarely in the spotlight. A learned intermediary case before the California Supreme Court? For your ever-vigilant DDL bloggers, that is like Thanksgiving and Christmas wrapped into one!
Who will be…
W.D. Wash. Nixes Failure to Warn Claim Under Learned Intermediary Doctrine
For readers noticing the new byline, let me introduce myself. I am Susanna Moldoveanu, and I practice with Butler Snow LLP’s Pharmaceutical, Medical Device and Healthcare group. I am excited to join the Drug & Device Law Blogging Team. The best group of legal wonks there is.
Today we discuss the Western District of Washington’s recent summary judgment order in Dearinger v. Eli Lilly & Co., 2023 WL 8717570 (W.D. Wash. Dec. 18, 2023). A prior opinion in this case earned the top spot on the Blog’s Ten Best Prescription Drug/Medical Device Decisions of 2022. This opinion is short and sweet, but a good one too.Continue Reading W.D. Wash. Nixes Failure to Warn Claim Under Learned Intermediary Doctrine
Pro Se Plaintiff Twiqballed in D. Conn., But Claim Would Have Failed Anyway
We are back “stateside,” after a trip to London and Florence. We loved both, especially the Tower of London, Highclere Castle (used for the filming of Downton Abbey – how very cool to walk through the rooms we watched with such pleasure for six seasons) and, of course, the breathtaking David. But this is pretty…
When the Law Isn’t Really the Law – Creative Jurisprudence in Mostly Bad C.D. California Singulair Decision
Lovely Warnings Causation (and More) Mesh Decision from the Central District of California
We are just back from a lovely long weekend in Mexico. We were delighted to find, on our DVR, a show we’d forgotten we set to record: a special interviewing the cast and director of Love, Actually on the 20th anniversary of that film’s release. This is our all-time favorite holiday film, and pretty close to our favorite film of any genre. We love how it has crept into popular culture (the SNL parody of the flip cards scene, featuring Kate McKinnon as Hillary Clinton is nothing short of brilliant), and we find the film endlessly charming and restorative, no matter how many times we watch it. Take a look at the special, if you missed it
Speaking of all-time favorites, today’s case deals with warnings causation, our all-time favorite doctrine. (Along with our co-blogger, Mr. McConnell, we just presented a CLE on this topic.) This is the doctrine: to prevail on a failure-to-warn claim in a prescription drug or medical device case, a plaintiff must prove both that the products warnings were inadequate and that the inadequate warning proximately caused the plaintiff’s injuries. Subject to variations of local law, the general rule is that, to prove the warnings causation piece, a plaintiff must adduce evidence that a different or stronger warning would have altered her physician’s decision to prescribe the drug or device.
In Brennan v. Johnson & Johnson, et al., 2022 WL 17219513 (C.D. Cal. Nov. 18, 2022), the plaintiff alleged that the warnings provided with her pelvic mesh devices were inadequate. She asserted failure-to-warn claims sounding in negligence and strict liability, and the defendant moved to dismiss both, arguing that the plaintiff could not prove that any inadequacy of the warnings proximately caused her injuries because her prescribing physician had not testified that she would have acted differently in the face of a different warning. Continue Reading Lovely Warnings Causation (and More) Mesh Decision from the Central District of California
An Unwelcome Twist On The Learned Intermediate Rule In Alabama
Regular readers of the blog know and appreciate our focus (fixation?) on the learned intermediary rule. Not because it is fun to say and makes us feel smart. No, we follow and write on the learned intermediary rule because it is a cornerstone of the law on allegedly inadequate drug and device warnings. It holds…
Summary Judgment for Defendant on Warnings and Punitive Damages Claims in D. Ariz. Artificial Hip Case
How Can A Plaintiff Prove Warnings Causation? The Ninth Circuit Wants To Know
The Ninth Circuit has certified a question to the California Supreme Court on the learned intermediary doctrine that immediately caught our attention: In a failure-to-warn claim against a prescription medical product manufacturer, is the plaintiff required to show that a stronger warning would have altered the physician’s decision to prescribe the product? Or can the…