Habits Of The Dead : Relying On Habit Evidence To Establish Causation In Failure To Warn Cases Involving Prescription Or Over-The-Counter Drugs
When you bring a product-liability case , regardless of what jurisdiction you ’ re in and regardless of whether you ’ re proceeding under a strict liability or negligence theory , you ’ ll have to establish proximate causation . If your case includes a failure-to-warn claim , you ’ ll have to prove that the inadequate warning caused the plaintiff ’ s injury . In failure to warn cases involving a particular product — prescription or over-the-counter drugs — how you ’ ll go about meeting that burden depends on whether the drug at issue is an over-the-counter drug or a prescription drug . In the prescription drug context — a context where the learned intermediary doctrine often applies — the plaintiff must establish how adequate warnings would have impacted the prescribing doctor . In the over-the-counter context , the plaintiff must establish how adequate warnings would have impacted the drug taker .
Regardless of the type of drug involved , proving causation can be complicated by dead witnesses . In the prescription drug context , a dead prescribing doctor is the primary concern . In the over-the-counter drug context , a dead plaintiff / patient is the concern . Still , a plaintiff ’ s attorney may look to a seldom used Federal Rule of Evidence to fill in the evidentiary gap : Federal Rule of Evidence 406 , the rule governing evidence of habit or routine practice .
This article discusses ( A ) general background on habit evidence and ( B ) the mechanics of using habit evidence to prove causation in failure to warn cases .
46 x The Trial Lawyer
By John R . Byrne