A very recent decision from the Fosamax litigation illustrates a causation principle that’s essential to keeping warning claims from spinning totally out of control. That principle is that there’s no claim for inadequate warnings except as to the risk that the plaintiff is suing over. Seems sort of basic, but every so often a case comes along that reminds us why this principle is important.

In Boles (more…)

So much of what we write amounts to an argument for rigorous gatekeeping by trial courts. That’s true when we discuss Twombly/Iqbal. That’s true when we discuss Daubert. That’s also true when we discuss causation issues. “Causation” is a broad term that can include a couple of different things. For example, cases should be tossed if the conduct in question had no effect on the decision to use a product. Right now, we’re talking about classical (more…)

Whether additional warnings would have made a difference to learned intermediary physicians was the issue to be decided in two appellate decisions handed down this week. On facts that weren’t all that much different – at least as far as the prescribers were concerned (hold that thought for later) – the courts came to diametrically different conclusions.

On the one hand, it was lights out for a Georgia plaintiff, (more…)

Imagine this: The only published article in the medical literature reaching a statistically significant result concerning a drug and an outcome turns out not to have been what it seems. Rather, over a third of the subjects in the relevant category turn out to be misclassified. When properly reclassified, the statistical significance between the drug and the outcome goes away.

If that study had been sponsored by the drug company, and involved (more…)