We have decided that 2023 will be a year of new adventures for us. We are dipping our toes into the world of dog shows (our gorgeous poodle puppy is now past five months old and soon to begin his show career with a top poodle handler) and we are running for local elected office.
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.
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
Quick puppy update: the standard poodle puppies, one of which will be our first-ever show dog in a house filled with canine and feline rescued ragamuffins, are four weeks old today. All eight are fat and healthy, despite a scare with one white male puppy a week or so ago. We will meet them this
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
We write on a lovely Sunday afternoon, much of which was devoted to trying to figure out what the oldest of the Drug and Device Law Little Rescue Dogs would deign to eat. We should note that we would do literally anything for this frail, scruffy angel incarnate. To wit, we have cooked fresh beef
We write this as we prepare to leave for an overseas trip. We have our N95s, our face shields, and our vaccine card, along with a bit of apprehension and a large measure of giddy gratitude. It has been a long eighteen months (and counting). We’ll fill in some details next time, but we’ll sign
This post is not from the Dechert side of the Blog.
We exchanged e-mails today with one of our first mentors, many years retired. With this long-ago colleague, we tried our first prescription drug cases when we were fresh out of law school, creating some of the fondest memories of our decades-long legal career. Back
We are feeling happy and grateful this week. On Sunday, we were able to hug the Drug and Device Law Dowager Countess for the first time in fourteen months and to share a Mothers’ Day meal with her and our siblings, all fully vaccinated and past the waiting period. The Countess is closer to 90
The plaintiff in Salinero v. Johnson & Johnson, __ F.3d __, No. 20-10900, 2021 WL 1681237 (11th Cir. Apr. 29, 2021), tried a new twist to get around the learned intermediary rule—and it did not work. The district court rejected the plaintiff’s attempt to graft a “financial bias” exception onto Florida’s learned intermediary rule,