Discovered Middleman Testimony Sinks Causation in California


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Right this moment’s case is a couple of very unlucky set of circumstances.  A lady who suffered from bipolar dysfunction and who was not attempting to get pregnant did in reality turn into pregnant two months after being prescribed a temper stabilizer that carried a black field warning concerning delivery defects. Fisher v. Abott Labs, 2023 U.S. Dist. LEXIS 194594 (C.D. Cal. Oct. 27, 2023).  Plaintiff was born with a pre-existing genetic situation unrelated to his mom’s use of the temper stabilizer, however sued the producer alleging the drug might have exacerbated his signs.  Id. at *7. 

Plaintiff made many arguments to attempt to save his warnings claims.  He argued the warning supplied by the producer was insufficient.  He argued that there have been different medication in the marketplace that had been safer that would have been prescribed.  He argued the prescribing doctor ought to have thought of different choices.  He argued that as a result of the prescriber’s notes didn’t embody an announcement that he warned plaintiff’s mom concerning the dangers of delivery defects, it’s an open query whether or not he did so warn her.  Lastly, he argued that lately the prescriber stopped prescribing the drug to ladies in childbearing years, which is solely an inaccurate account.  The prescriber, having the identical information right now that he had when he prescribed the drug to plaintiff’s mom, “tries to keep away from” prescribing to ladies of childbearing age – which is exactly the identical factor he did with plaintiff’s mom.  Id. at *14-18. 

None of these arguments, nonetheless, counters the truth that plaintiff had no proof that if the prescriber had acquired a unique warning, he would have opted to not prescribe the temper stabilizer to plaintiff’s mom.  With out that, plaintiff doesn’t have causation.  With out causation, all his different arguments are irrelevant.

The prescriber’s testimony on this case is essential.  He testified that when treating bipolar dysfunction, he prescribes temper stabilizers together with different drugs.  On the time he handled plaintiff’s mom, he used three temper stabilizers.  His observe was to start out with the one with the least unwanted side effects and transfer on to the second and third provided that the prior drug was ineffective or couldn’t be tolerated.  Defendant’s drug was his third line selection because of the black field warning.  Id. at *2-3.  Plaintiff’s mom couldn’t tolerate the primary line drug and so was prescribed the second line which appeared to be efficient for a number of years.  Her situation worsened in 2021, inflicting her doctor to modify her to defendants’ drug. Id. at *3-6.  The prescriber testified that he believed the prescription was essential to deal with plaintiff’s mom.  He additionally testified that he would have warned plaintiff’s mom concerning the severe threat of delivery defects and suggested her to not turn into pregnant with out consulting with him first.  Id. at *6. 

It’s properly established California legislation that if plaintiff fails to adduce proof that the prescribing doctor would have acted in a different way if supplied totally different warnings, defendant is entitled to abstract judgment.  Id. at *11.  The uncontroverted proof right here is that the prescribing doctor was properly conscious of the intense threat of delivery defects, tried different drugs earlier than prescribing this one to plaintiff’s mom, and warned plaintiff’s mom towards changing into pregnant.  Notably, plaintiff’s counsel by no means requested the important thing query to the prescriber—would you could have carried out one thing in a different way?  So, the file is that the doctor “stands by his prescription and believes it was mandatory.”  Id. at *13.

So, adequacy doesn’t matter.  Different choices don’t matter.  Causation issues.  With out it, plaintiff’s case doesn’t survive.


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