In a product liability action under New York law, the Southern District of New York declined to apply the “heeding presumption” – that the prescribing physician would have heeded a differently worded label for Risperdal. Adeghe v. Janssen Pharm., Inc., 16 CIV. 2235 (LGS), 2017 WL 3741310 (S.D.N.Y. Aug. 30, 2017). Janssen Pharmaceuticals won summary judgment on failure to warn claims, as plaintiff failed to raise an issue of fact by assuming, without any evidence, that the plaintiff’s prescribing physician would have heeded a differently worded Risperdal labeling if it had been more explicit about the risk of gynecomastia, which plaintiff developed.

The court emphasized the fact-specific nature of failure to warn liability, and that the burden to prove causation falls squarely on the plaintiff. Id. at *6. Plaintiff’s burden “includes adducing proof that the user of a product would have read and heeded a warning had one been given.” Id. Separate and apart from a determination on the adequacy of the warning, “Plaintiff's claim fails because there is no evidence from which a reasonable jury could conclude that any failure to warn caused Plaintiff's injuries.” Id. There was simply no evidence that the physician learned intermediary would not have prescribed the drug if the label had more extensively identified the risks.