Defendant Didn’t Buy The Love


Like many, we enjoy a good Beatles reference – and while this might not be a particularly good one – we can still imagine defense lawyers humming a few bars of “Can’t Buy Me Love” after reading the most recent decision from the Trasylol MDL. There are many good aspects to the summary judgment ruling in Shaw v. Bayer Corp., 2011 U.S. Dist. LEXIS 57057 (S.D. Fla. May 23, 2011) – which we may well cover in future posts – but today we highlight plaintiff’s failed attempt to overcome the learned intermediary defense by arguing financially-generated bias. So, “Yesterday” the topic was anger, but today we get to report about the law “Getting Better.”

In Shaw, the patient received Trasylol during heart bypass surgery and later died from respiratory failure. The plaintiff blamed the Trasylol, while the treating physicians blamed the decedent’s “Long and Winding [trip down tobacco] Road” and COPD. Shaw, 2011 U.S. Dist. LEXIS 57057 at *4. The decedent's heart surgeon not only testified that Trasylol was unrelated to the death, he also testified that (1) he prescribed Trasylol based on his routine and experience with the drug; (2) he considered the particular circumstances of the patient and the surgery in making his prescribing decision; and (3) he would still use Trasylol today if it were available for bypass surgeries – even after considering the information that plaintiff claimed was wrongfully withheld. Id. at *4, *17-18. This testimony set the stage for the defendant's summary judgment motion based on lack of proximate cause, that is, that no deficiency in the defendant’s warning caused the doctor to do anything different.

To prove her failure to warn claim (under Alabama law), plaintiff had to demonstrate that an adequate warning would have been read and heeded by the prescribing surgeon and that the injury would have been avoided. Id. at *12. Since the plaintiff couldn't shake the surgeon's testimony – which essentially took the Trasylol warning out of the picture – she tried to shake the surgeon himself.

Plaintiff argued that the learned intermediary doctrine shouldn’t apply because the surgeon was "biased" as he had been a consultant for the defendant and had once been paid to attend a conference. Id. at *11. Does that fact create a factual issue? Not by itself.

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