United States: When Plaintiff Conduct Matters

Last Updated: September 19 2017
Article by James Beck

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.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
James Beck
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.