Applying New York product liability law, a recent decision by the United States District Court for the District of New Jersey granted summary judgment for Bristol-Myers Squibb and other pharmaceutical manufacturers based on the deposition testimony of plaintiff’s treating physician who prescribed the drug Plavix and was independently aware of the increased risk of bleeding associated with the pharmaceutical.  In Re: Plavix Marketing, Sales Practices and Products Liability Litigation (No. II), CV 13-4521(FLW), 2017 WL 3531684 (D.N.J. Aug. 17, 2017).  The treating physician, a third-party witness, testified that Plavix was medically necessary for the plaintiff, and that the benefits of the medication outweighed the risks, including those additional risks which plaintiff claimed were missing from the Prescribing Information.

Plaintiff tried to raise an issue of fact by challenging the credibility of the treating physician’s unrebutted testimony that he would have prescribed Plavix even if he were provided with the most current research and FDA mandated warnings.  The court, emphasizing that it is always the plaintiff’s burden to prove that a different warning would have changed the physician’s prescribing decision, disagreed with plaintiff’s position that the doctor is an interested witness providing self-serving statements.  “[I]f a treating doctor is not a defendant, but merely a third-party witness, his or her testimony, without any evidence of credibility issues, is a sufficient basis to grant summary judgment.”  Id. at *8 (emphasis in original).

The decision clearly demarcates the separate defenses of adequacy of the warning and the learned intermediary doctrine, each self-sufficient to win a dismissal.  While a court may find that plaintiff raised an issue of fact as to the adequacy of the warning, Bristol-Myers won summary judgment on the learned intermediary doctrine and proximate causation.  Plaintiff’s expert opinions as to insufficiency of the warning were irrelevant, since the doctor’s testimony broke the chain of causation as a matter of law.  Plaintiff could not establish that, even if inadequate, the drug’s warnings caused plaintiff’s injuries.  Id.

The design defect claims necessarily failed along with defective warning claims.  “Plaintiff’s claim is solely based on inadequate warning, not that Plavix is inherently unsafe.”  Id. at *12.  “I do not find that, under New York law, Plaintiff can bring a design defect claim based on inadequate warning, alone.”  Id Further, citing to Tomaselli v. Zimmer, wherein Harris Beach won summary judgment on all counts the court found that plaintiff could not meet his burden to establish that the risks of the drug outweigh its utility.  Id. at 13.