The Dearinger case within the Western District of Washington offered a variety of protection pleasant weblog fodder. It made its technique to the Washington Supreme Court docket for a licensed query whether or not Washington would acknowledge a direct to client exception to the realized middleman rule. The Washington Supreme Court docket answered that query with a convincing no. Following that call, the district court docket dismissed a few of plaintiffs’ claims on an preliminary movement for abstract judgement. We blogged about that call right here. The newest determination in Dearinger v. Eli Lilly & Co., 2024 WL 416848 (W.D. Wash. Feb. 5, 2024) serves up some good protection nuggets making use of the Washington Product Legal responsibility Act (WPLA) and refusing to let a sham affidavit create a truth concern.
Plaintiffs claimed harm from an intracranial hemorrhage allegedly brought on by Cialis. After the district court docket’s determination dismissing the plaintiffs’ failure to warn declare, the plaintiffs filed a movement for reconsideration, and the defendant filed a second movement for abstract judgment addressing the remaining design defect and lack of consortium claims.
Plaintiffs included of their movement for reconsideration a prolonged affidavit contending that the court docket’s determination dismissing their failure to warn declare was based mostly on the fallacious doctor’s testimony. They claimed {that a} main care supplier really made the prescribing selections. Plaintiffs offered testimony from that doctor suggesting that he would have modified his prescribing determination if introduced with plaintiffs’ proposed warning language. Plaintiffs argued these info undermined the court docket’s preliminary ruling on abstract judgment. If accepted, the testimony could have altered the court docket’s evaluation within the second movement for abstract judgment.
Quite than beginning with the movement for reconsideration, the court docket started with the defendant’s arguments for abstract judgment on the remaining claims (a great signal). First up was preemption of the design defect declare, and the court docket made brief work of this:
[I]t is uncontroverted that Cialis is an FDA-approved prescription medicine which, underneath federal legislation, Defendant is prohibited from altering its formulation with out prior FDA approval. Based mostly on the plain that means of the regulation, Defendant couldn’t alter the medicine with out submission to the FDA for ‘approval prior to distribution of the product made utilizing the change.’ Consequently, to the extent Plaintiffs’ design defect declare is predicated on Cialis’s formulation, it’s preempted.
Id. at *2 (quoting 21 C.F.R. § 314.70(b)(2)(i)). With that, all that remained was any design defect declare sounding in faulty labeling.
Below the WPLA, a “warning-based design defect declare requires proof {that a} totally different warning would have precipitated a distinct end result.” Id. The prescriber (as recognized by the defendant and whose testimony supported the preliminary grant of abstract judgement on plaintiffs’ failure to warn declare) testified that (1) he was conscious of the chance of hemorrhagic strokes, (2) even when he had acquired a stronger warning, he wouldn’t have modified his prescribing determination. Plaintiffs didn’t current any proof rebutting this doctor’s testimony, so the court docket granted the defendant’s movement.
The court docket then turned to the affidavit submitted with plaintiffs’ movement for reconsideration. The plaintiffs’ affidavit concerning the main care doctor being the “precise” prescriber instantly contradicted the plaintiffs’ prior deposition testimony figuring out a distinct prescribing physician. The court docket quoted good language from two Ninth Circuit selections addressing sham affidavits. Kennedy v. Allied Mut. Ins. Co., 952 F.second 262, 266 (ninth Cir. 1991) (“A celebration can’t create a problem of truth by an affidavit contradicting his prior deposition testimony.”); Russell v. Pac. Motor Trucking Co., 672 F.App’x 629, 630 (ninth Cir. 2016) (“The district court docket didn’t abuse its discretion in disregarding these parts of the affidavit that instantly contradicted [plaintiff’s] former deposition testimony.”). With this assist, the court docket denied the movement for reconsideration, and the sham affidavit had no impression on the court docket’s dismissal of the remaining claims. It’s a pleasant ending to Dearinger, and a great addition to the assortment of choices rejecting sham affidavits in prescription medical product legal responsibility litigation.
