We received an update today from one of our correspondents on Schilf v. Eli Lilly & Co., a case in which the trial court granted summary judgment against plaintiffs’ claim that the defendant didn’t sufficiently warn about the suicide risks of its antidepressant drug.  We reported on this defense win here.  At the district court level, the court determined that South Dakota would follow the learned intermediary doctrine.  With that, the court then held that plaintiff could not show warning causation because the prescriber testified in his deposition that he still would have prescribed the drug even if he knew the information that plaintiffs claimed should have been warned about.  That was all very good.

But we’ve just learned that the 8th Circuit saw things differently on appeal.  Schilf v. Eli Lilly & Co., 2012 U.S. App. LEXIS 16103 (8th Cir. Aug. 3, 2012).  In short, the 8th Circuit (in a de novo review) found that the prescriber’s testimony did not establish that he would have prescribed knowing what plaintiffs claimed he should have known.

The things he should have known, according to plaintiffs, were that there had been 5 completed suicides in the defendant’s clinical trials, that a causal link had been established, and that the suicide risk is increased further in adolescents.  Id. at *6.  The 8th Circuit believed that the prescriber’s deposition didn’t show that he knew these things – even at the time of the deposition.

For instance, while the prescriber testified that he was aware of an FDA Press Release on the suicide risk, it wasn’t clear whether he knew what was in the press release.  Id. at *9-10.  Also, while the prescriber said that he had seen something in the press about pediatric use of antidepressants, there was insufficient testimony on where he’d seen it or what it said.  Id. at *9.  The 8th Circuit also took issue with the prescriber’s testimony that he would still prescribe today, finding it ambiguous as to whether this testimony was based on what the prescriber knew at the time that he prescribed or today.  Id. at *11-12.

All this seems very fact intensive.  And that’s where the good news lies.  This decision doesn’t undermine the availability of a warnings causation defense – a defense that shows that plaintiffs’ preferred warnings wouldn’t have mattered.  It is, rather, a holding that (correctly or not) the facts of this particular case don’t support such a defense at the summary judgment stage.  Of course, they can still support a defense jury verdict.

It’s obviously an unfortunate outcome – for now – for the defense.  But it’s not much more than that.  We can still ask at our prescriber depositions, “if you knew then what you know today would you have still prescribed to the plaintiff?”  Just be sure to make clear what the doctor knows today.