- The prescriber doesn’t think the plaintiff suffered from a kidney related injury, but rather from unrelated conditions caused by many years of smoking. Id.
- The prescriber would do the same thing – that is, use Trasylol in the decedent’s surgery – today. Id.
- The surgeon didn’t rely on the label in deciding to prescribe Trasylol, but rather upon his own clinical experience with the drug. Id. at *5.
- Knowing about the allegedly omitted information, the surgeon would still prescribe Trasylol. Id.
That kind of testimony made the case a stone, cold loser on causation grounds under the learned intermediary rule – which, of course, is why the plaintiff unsuccessfully alleged that a tiny, one-meeting $500 consulting agreement somehow compromised the independence of the prescriber, a cardiacthoracic surgeon. The court, as our prior post discussed, essentially said, “Yeah ... right.” to that. Id. at *4.
Well, the average plaintiff is even less likely to read thirty-two warnings in a prescription drug label than s/he is to read thirty-two warning stickers on a step ladder. That's because, unlike step ladders, plaintiffs have to go through doctors to use prescription medical products, and – surprise, surprise, surprise – most patients actually do rely on their prescribers and don't bother to read all that stuff themselves.
I also find that even if the learned intermediary doctrine did not apply to Plaintiff's failure to warn claims, she does not present evidence that [the decedent] relied on an inadequate warning, or that she would have read and heeded an adequate warning.
Id. at *5.
Plaintiff obtained the catheter from prison officials and no information was ever provided to Plaintiff regarding the proper use and removal of the [device]. Plaintiff opines that for security reasons . . . the products are removed and searched for contraband and the boxes are discarded. . . . No matter what the “Instruction for Use Sheet” would have said, based on Plaintiff's representations, he would never have seen it, further undercutting his claim.Id. at *13. Accord Dyson v. Winfield, 113 F. Supp.2d 35, 41 n.3 (D.D.C. 2000) (claim based on alleged inadequacy of patient package insert failed where “by plaintiff's uncontradicted testimony, she did not read the warning”; “an unread warning cannot serve as a basis for a claim that the warning affected one's behavior”), aff’d, 21 Fed. Appx. 2 (D.C. Cir. 2001).
[Plaintiff] testified that she never read [the] package insert or any other documents accompanying her . . . prescription. . . . Many courts have declined to find proximate causation in pharmaceutical failure-to-warn suits when the patient (or the prescribing physician if the learned intermediary doctrine is applicable) did not read the defendant manufacturer’s allegedly inadequate warning. These courts reasoned that if the patient or physician did not read the drug warning in the first instance, then there is no basis for finding that a stronger warning would have affected their behavior.
Id. at *9 (footnote omitted). See also In re Zyprexa Products Liability Litigation, 2009 WL 1514628, at *12 (E.D.N.Y. June 1, 2009) (another West Virginia law case granting summary judgment where “there is no evidence that [plaintiff] ever read any of defendant’s warnings”). Who knows? In some ways West Virginia plaintiffs might end up worse off without the learned intermediary rule than with it.
[T]he result would have been no different even if [defendant] were chargeable with warning plaintiff directly. Under 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. . . . As [plaintiff] admitted, reading the forms would not have dissuaded her from undergoing the surgery because her arm was “killing” her and she “had made up [her] mind to have [the] surgery.” As is apparent, even if plaintiffs had been warned as to the possibility of the exact injury that occurred here, the warning would have been futile. Thus, the record demonstrates that even if [plaintiff’s] duty to warn ran directly to this patient, her proof on the issue of proximate cause fails.
Id. at 287. A second New York intermediate appellate decision agrees. Summary judgment against the plaintiff’s warning-based claims was affirmed where “plaintiff's deposition testimony was clear that he had not read defendant manufacturer’s warnings until after he had stopped using [the drug] and sustained the complained-of injury.” Sosna v. American Home Products, 748 N.Y.S.2d 548, 549 (N.Y.A.D. 2002).