When Plaintiff Conduct Matters

by Reed Smith
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We previously addressed the in pari delicto doctrine, whereby a plaintiff injured in the course of his or her criminal conduct cannot recover for those injuries.  We specifically examined this doctrine’s most common application in prescription medical product liability litigation – where the plaintiff is injured as a consequence of his or her illegal use of prescription drugs, particularly those prescribed for somebody else.

In what other situations, besides criminal activity, is plaintiff conduct going to matter to liability issues (a great variety of conduct can be relevant to damages, especially that affecting lifespan and employability) involving prescription medical products?  We recognize that, given the learned intermediary rule, the conduct of prescribing (and in some jurisdictions, treating) physicians is ordinarily going to have considerably more impact on causation issues than what plaintiffs themselves did, or didn’t do, but that said, there are situations in particular cases in which plaintiff conduct becomes especially relevant.

Plaintiff’s Comparative Fault & Contributory Negligence

In general, nothing inherent in prescription medical product liability litigation makes a plaintiff’s comparative, or where relevant contributory, negligence irrelevant.  As long as “more than a scintilla of evidence” as to comparative fault exists, the defense goes to the jury. In re C.R. Bard, Inc., 2013 WL 2431975, at *9 (S.D.W. Va. June 4, 2013) (applying Wisconsin law). See Barraza v. C.R. Bard Inc., ___ F.R.D. ___, 2017 WL 3976720, at *8 (D. Ariz. Sept. 11, 2017) (recognizing potential applicability of “assumption of the risk, or comparative or contributory negligence, as defenses” in eleven states; discussing plaintiffs who failed to comply with medical instructions).

of Judge Posner, in Robinson v. McNeil Consumer Healthcare, 615 F.3d 861 (7th Cir. 2010) (applying Virginia law), affirmed a defense verdict on contributory negligence where the plaintiff “didn’t sue [her doctor] for malpractice, and she doesn’t argue that it was reasonable for her (and therefore not contributorily negligent) to rely on the doctor’s failure to warn her.”  Id. at 870.  In Craft v. Peebles, 893 P.2d 138 (Haw. 1995), the defendant was entitled to assert the plaintiff’s failure to stop smoking as contributory negligence.

However, the contributory negligence instruction was appropriate with respect to [the defendant manufacturer] because the evidence presented at trial raised a bona fide issue with respect to [plaintiff’s] alleged contributory negligence.  The record indicates that . . . she smoked a pack of cigarettes a day and that she had been smoking for seventeen years.  [Plaintiff’s] expert . . . testified that [her symptoms] could have resulted from the cigarettes.

Id. at 154.  In the same vein, in Rosa v. Medtronic MiniMed, Inc., 2008 WL 1990892 (D.P.R. May 6, 2008), the plaintiff’s “failure to adequately monitor his glucose levels and take the necessary measures in response,” presented a jury question, notwithstanding plaintiff’s blaming his actions on bad advice from his treating physician. Id. at *7-8.  Conversely, because the defendant failed to develop the necessary expert testimony to support causation-based defenses of comparative negligence, plaintiff misconduct, apportionment of liability, and superseding/intervening cause – but only because of that failure – in Bartlett v. Mutual Pharmaceutical Co., 731 F. Supp.2d 184, 188-191 (D.N.H. 2010), the plaintiff was successful in removing those defenses from the case.  So, where supported by sufficient evidence defenses based on plaintiff conduct are available in pharmaceutical product liability litigation.

Plaintiff’s Failure To Read Relevant Warnings

The most common way to defeat causation in a prescription medical product case with plaintiff-specific evidence is when that evidence establishes that the plaintiff did not read available information about serious risks.  We’ve discussed at length how this argument works when the prescribing physician fails to read warnings, and the principle is the same when the plaintiffs themselves are at fault.  Several state appellate courts have so held.  Most of these cases involve situations where, for one reason or  another, the learned intermediary rule is inapplicable.  In an OTC drug case, the California Supreme Court held:

Plaintiff’s mother, who administered the [product] to plaintiff, neither read nor obtained translation of the product labeling.  Thus, there is no conceivable causal connection between the representations or omissions that accompanied the product and plaintiff’s injury.

Ramirez v. Plough, Inc., 863 P.2d 167, 177 (Cal. 1993).  Along the same lines is E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 971 (Ala. 1985), holding:

The evidence is undisputed that plaintiff did not read any of the instructions or warnings [defendant] provided on and with its [product]. . . .  Even if the warning accompanying this [product] had read, [extremely graphic warning omitted], it would not have altered this plaintiff’s course of action and prevented his injury, because he would not have read it.  [Defendant’s] inadequate warning, therefore, did not cause plaintiff’s injury.

Id. at 971.  Accord Moore v. Vanderloo, 386 N.W.2d 108, 112 (Iowa 1986) (summary judgment affirmed where “[t]here is no evidence under this record that [plaintiff] read or relied on any of [defendant’s] informational material”); Prince v. B.F. Ascher Co., 90 P.3d 1020, 1027 (Okla. Civ. App. 2004) (“[m]anufacturers, however, are not required to foresee that consumers will fail to read the product’s warnings and then use the product in a manner that the instructions expressly warn against”); Mulhall v. Hannafin, 841 N.Y.S.2d 282, 287 (N.Y. App. Div. 2007) (summary judgment affirmed; plaintiff testified that she “chose not to read the consent forms warning against the risks [in question] and even death, and signed them nonetheless”); Sosna v. American Home Products, 748 N.Y.S.2d 548, 549-50 (N.Y. App. Div. 2002) (summary judgment affirmed where “plaintiff’s deposition testimony was clear that he had not read defendant manufacturer’s warnings until after he had stopped using its product and sustained the complained-of injury”).

In another OTC drug case, the aforementioned, Robinson v. McNeil decision also relied on the plaintiff’s failure to read warnings in affirming a defense verdict:

[Plaintiff] didn’t read or remember the warnings before taking the [drug], so it wouldn’t matter what the label had said unless it had contained truly terrifying warnings that the state of medical knowledge would not have justified.

615 F.3d at 870.  Accord Boruski v. United States, 803 F.2d 1421, 1426, 1429 (7th Cir. 1986) (“had [plaintiff] read what the form says about risks and the particular disease she claims to have contracted, she would have found the form clearly sufficient in its warning”) (applying Illinois law).

In Sparks v. Oxy-Health, LLC, 134 F. Supp.3d 961 (E.D.N.C. 2015), plaintiffs bought a action about a home-use medical device, but none of them “ever read the instruction manual that came with the [device] when it was purchased.  Id. at 994.  Plaintiffs’ conduct required summary judgment against their warning claims:

because the [plaintiff] family did not read the Reference Manual or follow existing warnings, and because there is no credible evidence to suggest an on-[product] warning would have changed [their] behavior, plaintiffs cannot establish causation as a matter of law. . . .  Of particular importance is the [plaintiff] family’s collective failure to read the Reference Manual provided with the [device].

Id. at 995.  Similarly, the court in Walker v. Merck & Co., 648 F. Supp. 931, 935-36 (M.D. Ga. 1986), held:

Manufacturers are not insurers, and a manufacturer cannot be held liable for a consumer’s failure to read or to listen to understandable warnings.  Even taking as true [plaintiff’s] allegation that she does not remember being asked about the [risk], the fact remains that [she] and her mother were provided with a form delineating the risks inherent in [the product] while they were waiting in line for [her] to be vaccinated.  [Defendant] used all reasonable care required by law to warn of potential injury.

Id. at 935-36.

Not all the cases are when the learned intermediary rule is inapplicable.  Some involve supplemental patient-directed information.  For example, “[a]s Defendants point out, there is no evidence the alleged inadequate warning was the proximate cause of [plaintiff’s] injury.  The record is clear Plaintiffs failed to read the detailed patient labeling, which explicitly warned of the precise injury that resulted.”  Canady v. Ortho-McNeil Pharmaceutical, Inc., 2014 WL 4930675, at *3 (N.D. Ohio Oct. 1, 2014) (applying Oregon law).  Accord Shah v. Forest Laboratories, Inc., 2015 WL 3396813, at *9 (N.D. Ill. May 26, 2015) (summary judgment granted where “there is absolutely no evidence that [plaintiff] ever read the [disputed] Brochure”); Scharff v. Wyeth, 2011 WL 3320501, at *14 (M.D. Ala. Aug. 2, 2011) (plaintiff “testified that though she might have glanced at the . . . Patient Information Insert, she did not read it”); Crayton v. Rochester Medical Corp., 2011 WL 475009, at *13 (E.D. Cal. Feb. 4, 2011) (“[n]o matter what the “Instruction for Use Sheet” would have said, based on Plaintiff’s representations, he would never have seen it”), aff’d, 548 F. Appx. 483 (9th Cir. 2013); McSwain v. Sunrise Medical, Inc., 689 F. Supp.2d 835, 844 (S.D. Miss. 2010) (plaintiff “cannot prove that the manual’s inadequate warnings proximately caused his injury because [he] voluntarily made the decision to not read the manual”); Gibson v. Sanofi-Aventis U.S., LLC, 2009 WL 3490454, at *5 (W.D. Ky. Oct. 27, 2009) (plaintiff “testified that she did not read any product materials which accompanied her [drug] prescription”); Dyson v. Winfield, 113 F. Supp.2d 35, 41 n.3 (D.D.C. 2000) (“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 mem. 21 Fed. Appx. 2 (D.C. Cir. 2001); Cornelison v. Tambrands, Inc., 710 F. Supp. 706, 711 (D. Minn. 1989) (plaintiff “fail[ed] to show the existence of a material factual dispute because there is no evidence that [she] used [product] from boxes which contained the labels”); Ortolano v. BDI Marketing, 2005 WL 4889720 (La. Dist. April 21, 2005) (plaintiff “admitted . . . that he did not read the entire label”; his “failure to warn claim must fail because it could not have possibly been the proximate cause”).

For awhile, West Virginia rejected the learned intermediary rule.  That ruling didn’t actually help plaintiffs all that much, since most of them actually did engage in the conduct on which the rule is predicated – they in fact relied on their prescribers (as the rule posits) and thus didn’t read the allegedly defective drug warnings themselves.  That failure meant West Virginia plaintiffs still lost on the issue of causation.  See Meade v. Parsley, 2010 WL 4909435, at *9 (S.D.W. Va. Nov. 24, 2010) (plaintiff “testified that she never read [defendant’s] package insert or any other documents accompanying her . . . prescription); In re Zyprexa Products Liability Litigation, 2009 WL 1514628, at *12 (E.D.N.Y. June 1, 2009) (“no evidence that [plaintiff] ever read any of defendant’s warnings”) (applying West Virginia law).

The heeding presumption can also be defeated by plaintiff failure to read.  Precisely that supported a defense verdict in Gaghan v. Hoffman-La Roche, Inc., 2014 WL 3798338, at *7 (New Jersey Super. App. Div. Aug. 4, 2014), where neither plaintiff nor her mother “read the warning material that was provided to them, thus suggesting that a more strongly-worded warning would not have been heeded.” Id. at *7.  Likewise, in In re Prempro Products Liability Litigation, 514 F.3d 825, 829 (8th Cir. 2008) (applying Arkansas law), it was proper to instruct the jury under Arkansas law that the defendant was justified in assuming that the plaintiff would read an available warning where plaintiff “admi[tted] that she never read the warnings [defendant] included.”  See Seley v. G.D. Searle & Co., 423 N.E.2d 831, 839 (Ohio 1981) (plaintiff’s failure to inform prescriber of prior medical history defeated heeding presumption).

Plaintiff’s failure to read – or lack of exposure to – direct to consumer information has also been successful in defeating warning claims, whether or not (mostly “not”) courts have allowed this purported exception to the learned intermediary rule. See Ramirez, 863 P.3d at 177 (“plaintiff’s mother could not have relied upon defendant’s advertising because she admittedly did not see or hear it”); In re Norplant Contraceptive Products Liability Litigation, 165 F.3d 374, 379 (5th Cir. 1999) (no evidence that plaintiffs “actually saw, let alone relied, on any marketing materials issued” by defendant) (applying Texas law); Mendez Montes De Oca v. Aventis Pharma, 579 F. Supp. 2d 222, 230 (D.P.R. 2008) (“none indicate that decedent was privy to this informational material prior” to use).

Plaintiff’s Failure To Follow Relevant Warnings

Another recurring way to defeat causation is to establish that the plaintiff in fact received an adequate warning about the risk(s) in question and nevertheless used the product and suffered from the warned-of risks. The Texas Supreme Court considered this type of evidence in holding in Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012), that plaintiffs had failed to establish causation:

[The prescriber] specifically warned [plaintiff] that she might have [the adverse event at issue], but despite this warning, [plaintiff] chose to continue receiving [the drug] and [the prescriber] continued prescribing them to her.  [Plaintiff’s] actions indicate that, even if [defendant] provided a different warning to her doctors, she would likely have continued [the drug] for her serious medical condition despite the risk. . . .  [Plaintiff] was also aware of other potentially serious, yet rare, side effects from [the drug], such as cancer, but chose to take the drug anyway.

Id. at 172-73.

A plaintiff’s outright disregard of relevant warnings is, of course, the most persuasive form that this type of evidence can take. Thus, in Broussard v. Procter & Gamble Co., 517 F.3d 767 (5th Cir. 2008), the plaintiff “violated extensive warnings when she used” the medical device at issue.  Id. at 770.  Under Louisiana law “plaintiffs who used a product in a manner that violates clear and express warnings can show that their use was reasonably anticipated only by presenting evidence that the manufacturer had reason to know that these warnings were ineffectual,” as to which she suffered summary judgment by “fail[ing] to present even one scintilla of evidence.” Id.

Likewise, in Bock v. Novartis Pharmaceuticals Corp., 661 Fed. Appx. 227 (3d Cir. 2016) (applying Pennsylvania law), summary judgment was affirmed where,

the evidence mustered paints the opposite picture [from what plaintiff needed], particularly the fact that [plaintiff], though informed by [his prescriber] of the risks of dental procedures and the concomitant need to inform his doctor of the need for any dental work, scheduled tooth extractions without consulting [his doctor].

Id. at 232-33.  The Sparks case, cited above, also involved the plaintiffs “fail[ing] to follow a pre-existing on-chamber warning.”  134 F. Supp.3d at 994.  So did Kelley v. Unico Holdings, Inc., 2009 WL 6316398 (Mag. S.D. Ohio July 16, 2009), adopted, 2010 WL 1267375 (S.D. Ohio March 29, 2010), since the plaintiff took “twice the daily dose” in the face of label warnings that “exceeding the recommended dose . . . can be harmful.”  Id. at *6.  Accord Crayton, 2011 WL 475009, at *13 (“Plaintiff was aware there was [a condition] in the [product] that could be painful for him to use [it], but he continued to use”); In re NuvaRing Litigation, 2013 WL 1874321, at *24 (N.J. Super. Law Div. April 18, 2013) (plaintiff “should have consulted her doctor as advised by the label”).

On similar evidence, a heeding presumption-based claim was defeated in D’Agnese v. Novartis Pharmaceuticals Corp., 952 F. Supp.2d 880 (D. Ariz. 2013):

Moreover, even after being warned of the possible risk . . ., [plaintiff] continued to take [the drug]. This would permit reasonable minds to conclude that [plaintiff’s] original prescribing doctor would have nonetheless prescribed [the drug] to [plaintiff] and/or that [his risk] would not have been averted.

Id. at 892-93 (footnote omitted).  Likewise, the plaintiff lost in In re Zyprexa Products Liability Litigation, 2009 WL 5216930 (E.D.N.Y. Dec. 21, 2009) (applying Minnesota law), where his prescriber “herself provided comprehensive warnings to the patient about [the drug’s]  association with” relevant risks. Id. at *12.  Thereafter, the plaintiff “elected to continue treatment with [the drug] for nearly three years after being diagnosed with [the risk], despite having been counseled that [these risks] are potential side effects of the medication.”  Id.  See In re Zyprexa Products Liability Litigation, 2009 WL 5062114, at *14 (E.D.N.Y. Dec. 10, 2009) (prescriber “counselled plaintiff on the need for close monitoring”), aff’d, 394 F. Appx. 814 (2d Cir. 2010) (applying California law); Harrington v. Biomet, Inc., 2008 WL 2329132, at *6 (W.D. Okla. June 3, 2008) (“Plaintiff was advised both before and after surgery and repeatedly thereafter of the risk . . . and what precautions to take”); In re Accutane Litigation, 2016 WL 5958375, at *16 (New Jersey Super. Law. Div. Oct. 12, 2016) (granting summary judgment where plaintiff testified “that he would have taken [the drug] regardless of his receiving [risk] warnings”) (applying Colorado law); id. at *30 (same where plaintiff admitted she “would have allowed” the drug where “the doctor felt that the benefits outweighed the risks”) (applying Nebraska law); In re Alloderm Litigation, 2015 WL 5022599, at *10 (New Jersey Super. Law Div. Aug. 14, 2015) (admitting testimony that plaintiff’s injury stemmed from activity that plaintiff “was advised repeatedly by medical professionals to limit or reduce”).

In Muzichuck v. Forest Laboratories, Inc., 2015 WL 235226, at *13 (N.D.W. Va. Jan. 16, 2015), summary judgment was granted where the warning in question came directly from the defendant, not the plaintiff’s prescriber.  The warning was “adequate,” and “uncontroverted facts establish that [plaintiff’s decedent] actually read the warning from the package insert.” Id. at *13.  Similarly, Niedner v. Ortho-McNeil Pharmaceutical, Inc., 58 N.E.3d 1080, 1086 (Mass. App. 2016), involved an exception to the learned intermediary rule, with the same result, since the warning was adequate as a matter of law:

As a matter of law, the insert adequately warned [plaintiff] of the increased risk . . . that could result in death, as compared to the risks associated with the [alternative], in terms understandable to a lay person. . . .  Here, the insert was abundant in its warning of the possibility [the risk] that could lead to death.

Id. at 1086 (citations omitted).

Note: there is another subset of cases of this type, involving off-label use where no manufacturer promotion occurred, that could fit here, but those cases have somewhat different implications, and since this post is getting long already, we will leave them for another day.

Plaintiff’s Informed Consent Forms as a Source of Risk Knowledge

Evidence of what a plaintiff “was told regarding the risk . . . and what [the] response was to that knowledge” is admissible concerning causation, E.R.G. v. Abbott Laboratories, Inc., 2017 WL 2126837, at *2 (S.D. Ill. May 16, 2017) (applying California law); see Newman v. McNeil Consumer Healthcare, 2013 WL 7217197, at *17 (N.D. Ill. Mar. 29, 2013) (contents of OTC drug label that plaintiffs read sufficient to create jury question as to assumption of the risk).   Besides the label itself, one good place to look for such evidence are informed consent forms signed by plaintiff or a relevant guardian.  Such forms can controvert a plaintiff’s denials of being warned (defeat plaintiff’s burden) or even constitute assumption of the risk (meet defendant’s burden).  As mentioned above, the evidence that defeated the heeding presumption in D’Agnese came from an informed consent form.  952 F. Supp.2d at 892 n.10.

In In re C.R. Bard, Inc., 2013 WL 5591948, at *8 (S.D.W. Va. June 4, 2013) (applying Mississippi law), and C.R. Bard, 2013 WL 2431975, at *9 (applying Wisconsin law), information from plaintiff informed consent forms were held relevant and admissible “to whether [the plaintiff] understood and assumed the risk of having the defective . . . product implanted in her.”

[Defendant] has provided some evidence that [plaintiff] was advised of the risks and consented to the implantation of the . . . products anyway.  Accordingly, even if the court or jury found that the . . . product was, in fact, defective, there would be a genuine issue of material fact as to whether . . . knew and understood of the defects and nonetheless consented.

2013 WL 5591948, at *8; accord 2013 WL 2431975, at *9.  See Taylor v. Pharmacia-Upjohn Co., 2005 WL 3502052, at *5 & n.9 (S.D. Miss. Dec. 19, 2005) (informed consent form established that plaintiffs had in fact received warnings); McMurdie v. Wyeth, 71 Pa. D. & C.4th 225, 230-35 (Pa. C.P. 2005) (extensive “on record” informed consent discussions established that plaintiff “knowingly and voluntarily assumed these risks”) (applying Utah law).

Plaintiff’s Failure To Offer Affirmative Testimony

We’ve already discussed how the burden of proof in a learned intermediary case mandates summary judgment where the plaintiff fails to obtain testimony from the prescribing physician(s) that a different warning would have changed the outcome in some relevant way.  Well, the same result can occur when a plaintiff does not provide his or her own affirmative causation testimony – which, believe it or not, does happen sometimes.  The plaintiff’s testimony in Georges v. Novartis Pharmaceuticals Corp., 988 F. Supp.2d 1152, 1157-1158 (C.D. Cal. 2013), failed to establish causation on a theory that she “would have ignored [her prescriber’s] advice and declined the Treatment Drugs after being warned of the risk when she was first offered them.”  Id. at 1158.  All plaintiff established was “that she would have stopped taking them after [her] symptoms . . . first arose.”  Id.  Likewise, in Hanson v. Boston Scientific Corp., 2016 WL 1448868 (S.D.W. Va. April 12, 2016) (applying Wisconsin law), the plaintiff tried to have it both ways on the learned intermediary rule, but instead lost both.  As to the plaintiff, Hanson held:

[T]he plaintiff still has not provided evidence of causation.  In fact, despite arguing against the application of the learned intermediary doctrine in her response, [plaintiff] provides no evidence that she − instead of [her prescriber] − would have rejected implantation had she known of the warning’s alleged insufficiency.

Id. at *5.  See In re Accutane Litigation, 2016 WL 5958375, at *42 (New Jersey Super. Law. Div. Oct. 12, 2016) (“Summary Judgment must be granted even under Plaintiff’s own standard where Plaintiff’s decision maker did not testify that she would not have allowed her daughter to take [the drug] in the face of an allegedly stronger warning) (applying Ohio law); id. at 48 (similar ruling under Wisconsin law).

Plaintiff’s Failure To Disclose Critical Medical Information

Another way in which plaintiff conduct can defeat causation is when the plaintiff fails to inform his or her prescriber of critical medical history necessary to an accurate assessment of medical risk.  Way back in 1975 the Oregon Supreme Court ruled in Vaughn v G.D. Searle & Co., 536 P.2d 1247 (Or. 1975), that the plaintiff’s failure to inform her treating physicians of “premonitory symptoms of a stroke prior to or at the time she saw” them defeated causation. Id. at 1249.

We find that plaintiff has offered no evidence, either direct or indirect, that she ever advised her treating physicians of symptoms which would have alerted them to the possibility of a stroke.  Without such knowledge there was no way the physician could have related any warning (that there is a cause-and-effect relationship between the ingestion of the drug and a stroke) to plaintiff’s particular case.  Thus, there was no evidence that even a properly warned physician would have treated plaintiff differently or removed her from defendant’s [product] prior to her stroke.

Id. at 1249-50.  Therefore, “there was no evidence that any failure to warn plaintiff’s physicians was a substantial factor in producing plaintiff’s injuries and that defendant’s motion for a directed verdict should have been granted.”  Id. at 1251.

The Ohio Supreme Court came to the same conclusion in Seley, 423 N.E.2d at 838-39, where the plaintiff asserted that the defendant “failed to warn that women with a prior history” of a particular condition “were subject to a higher risk” when using the drug.  Id. at 838.  Plaintiff, however, had “failed to disclose to [her prescriber] that she had experienced” that condition.  Id.  Thus, even “an adequate warning would have made no difference” to the prescriber, misled by the plaintiff’s non-disclosure.  Id. See  Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 878-79 (Wis. App. 2004) (summary judgment affirmed; “when [plaintiff] suffered her symptoms, her patient insert advised her to call her doctor,” but “she did not call her doctor as the patient insert instructed”); Brown v. Glaxo, Inc., 790 So.2d 35, 42 (La. App. 2000) (plaintiff did “not report[] the increasingly severe side effects” from the drug to her prescriber and was therefore “negligent”); Dyer v. Best Pharmacal, 577 P.2d 1084, 1088 (Ariz. App. 1978) (“Just as a drug manufacturer cannot be required to foresee a physician’s negligence, neither can it be required to foresee that a patient might mislead a physician about her physical condition in order to obtain a prescription drug”); Parkinson v. Novartis Pharmaceuticals Corp., 5 F. Supp.3d 1265, 1275 (D. Or. 2014) (following Vaughn; summary judgment granted where “Plaintiff failed to advise any of her dental-treatment providers until after both of her teeth had been extracted” about her use of defendant’s drug); Davids v. Novartis Pharmaceuticals Corp., 857 F. Supp.2d 267, 287 (E.D.N.Y. 2012) (granting summary judgment where treater “testified that the Plaintiff did not disclose that she was taking [the drug], or any other [similar] drug, until after she allegedly developed” the complained of condition); Dyson, 113 F. Supp.2d at 41 (summary judgment granted; where plaintiff did not inform prescriber of pregnancy, no better birth defect warning would make any difference).

Plaintiff’s Noncompliance With Medical Instructions

A plaintiff’s non-compliance with his or her physician’s affirmative medical instructions is also fair game.  In Zyprexa, 2009 WL 5062114, defendant was entitled to summary judgment, inter alia, where the “it was well documented throughout plaintiff’s medical records that she was non-compliant with [risk] treatment and diet since the time of her diagnosis.”  Id. at *14.  In Gross v. Stryker Corp., 858 F. Supp.2d 466 (W.D. Pa. 2012), the defendant successfully asserted the plaintiff’s comparative fault in “improperly caring for his incision” and not “adhering to a prescribed rehabilitation regimen” to preclude plaintiff’s reliance on res ipsa loquitur.  Id. at 499.  Previously, in the same court, comparative fault likewise applied to the plaintiff’s failure to follow his drug treatment regimen in Purnell v. United States, 1987 WL 11211, at *6 (E.D. Pa. May 21, 1987).  Similarly, in Emody v. Medtronic, Inc., 238 F. Supp.2d 1291 (N.D. Ala. 2003), the plaintiff’s failure to return for several medical appointments raised “a matter of legitimate dispute” over “[w]hether this [conduct] constituted contributory negligence” as a matter of law.  Id. at 1294.  In Barraza, 2017 WL 3976720, at *8, plaintiffs’ non-compliance, including one who “ignored no less than five letters from her implanting physician requesting clinical follow-up” were cited as examples of possible comparative fault in denying class certification.

Miscellaneous Relevant Plaintiff-Related Evidence

Plaintiff conduct has also been admitted as evidence allowed in various other contexts. In Gaghan, such testimony encouraged a jury to disbelieve the usual plaintiff “I wouldn’t have used, had I only known” testimony:

There was substantial evidence from which the jury could have found that [plaintiff] would have taken [the drug] even if [the prescriber] had received and passed on to her and her mother a stronger warning in the form recommended by plaintiffs’ expert witnesses.  [Plaintiff mother] testified that her daughter was upset and embarrassed . . ., disgusted with the way she looked, and becoming socially withdrawn.  The mother was very concerned about the detrimental physical and emotional effect [this] was having on her daughter.

2014 WL 3798338, at *7.

Plaintiffs who are also physicians in their own right lose when they don’t act like the professionals they’re supposed to be.  The plaintiff-physician in Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 423 N.Y.S.2d 95 (N.Y. App. Div. 1979), aff’d, 52 N.Y.2d 768, 417 N.E.2d 1002, 436 N.Y.S.2d 614 (1980), lost because he “knew the risks of taking this particular drug whose side effects were those specifically warned against.”  Id. at 97.  In Herzog v. Arthrocare Corp., 2003 WL 1785795 (D. Me. March 21, 2003), the plaintiff, also a physician, had used the defendant’s medical device himself when performing surgery, and therefore “a jury might conclude that [plaintiff] should have known that [his surgeon] might use the” device in a particular way and “therefore, he unreasonably proceeded to encounter a danger that was known to him.”  Id. at *17.

Where the plaintiff continued using the same drug, or continued having the same symptoms after ceasing use of the drug also “undermine[s]” the causation element.  Taylor, 2005 WL 3502052, at *5 n.9 (plaintiffs’ resumed use of the product indicated no warning would have deterred them).  See Richardson v. GlaxoSmithKline, 412 F. Supp.2d 863, 867 (W.D. Tenn. 2006) (summary judgment granted where plaintiff made multiple suicide attempts before and after using drug).

In Roberts v. Albertson’s LLC, 464 F. Appx. 605 (9th Cir. 2011) (applying Nevada law), causation was not established where plaintiff “did not present any evidence that it would have been foreseeable that the defect would cause him to stop taking his medication” altogether, so that no defect could have been “a substantial factor in causing [plaintiff’s] injury.”  Id. at 608.

In Carey v. Shiley, Inc., 32 F. Supp.2d 1093, 1099-1100 (S.D. Iowa 1998), causation was not proven where plaintiff’s “physicians agreed that the [procedure] was necessary regardless of the need for the [product] explant,” so the later explant was inevitable.

Finally, plaintiff misconduct, leading to “sexually transmitted diseases” in Allen v. G.D. Searle & Co., 708 F. Supp. 1142, 1162 (D. Or. 1989), and to suicide in Rimbert v. Eli Lilly & Co., 577 F. Supp.2d 1174, 1233 (D.N.M. 2008), have also been considered relevant in particular situations, irrespective of labeling.

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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JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

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