When It’s The Plaintiff, Not The Doctor


Earlier this week we posted about the learned intermediary aspects of Shaw v. Bayer, U.S. Dist. Lexis 57057 (S.D. Fla. May 23, 2011), which confusingly bears a completely different caption on Westlaw: In re Trasylol Products Liability Litigation, 2011 WL 2117257 (S.D. Fla. May 23, 2011). We said then that there was more to Shaw/Trasylol than just the learned intermediary rule, and promised to return to the case later.

Now is later.

The alternative holding in Shaw/Trasylol illuminates another lurking causation issue in our sandbox – what happens when the focus turns away from the prescribing physician to the plaintiff. For all the plaintiff side’s attacks on the learned intermediary rule, their clients often don’t fare much better when, for one reason or another, the rule doesn’t apply.

Shaw/Trasylol is exhibit A.

Let’s review the bidding. Trasylol is a drug used to put the brakes on internal bleeding during heavy duty surgery, often (as here) involving the heart. Allegedly, Trasylol can cause damage to the kidneys, and that’s what plaintiff Shaw alleged. 2011 WL 2117257, at *1. The surgeon who prescribed Trasylol, however, gave all the testimony necessary to establish an ironclad warning causation defense – that an allegedly adequate renal warning wouldn’t have made the slightest difference....

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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