We expect that most of our readers enjoyed yesterday with the American rituals of gluttony, football, and traffic. For some, today is an opportunity to see if doing nothing is the best way to combat lingering indigestion. For others, it may be that the lure of transforming scattered leaves into tidy piles of leaves—tidy, that is, until wind or youthful leaps disturb them—is enough to separate butts from sofas. For yet others, there will be an urge to shop for presents for upcoming—or, in an incredibly rare calendar quirk, on-going—holidays. (Yes, celebration of the festival of lights has been known to include the giving of socks, something probably not common with Saturnalia or its cultural descendants.) To encourage shopping, the marketers have dubbed this day Black Friday. Although we have heard it for a while, we have not really understood why this moniker would encourage people to spend money. The same name has been given to a number of deadly historical events. The Black Tuesday stock market crash of 1929 was hardly a spur to reckless spending. Other days of the week have been dubbed “Black” to commemorate a range of bad happenings. We are not marketers or shoppers by profession, so, to us, the term Black Friday bespeaks of something bad happening on a Friday.
In our post on the summary judgment decisions, we started with an expression of regret—in contrast to or conformity with yesterday’s gratitude depending on your perspective—but lauded the court’s “well thought out and systematic” decisions. In short, summary judgment was granted on all claims brought by two plaintiffs, one under Florida law and one under Illinois law. Each plaintiff experienced bleeding (cerebral hemorrhage for one and rectal and gastrointestinal for the other) while on Plavix and aspirin for acute coronary syndrome and asserted failure to warn, design defect, manufacturing defect and negligence claims. Each plaintiff failed to come forward with expert testimony that the extensive warnings as to the risk of bleeding were inadequate or that the product’s risks exceeded its benefits. In connection with the summary judgment motions, the court stayed discovery and refused to re-open discovery as to the product’s efficacy. For some reason, the second plaintiff appealed only the discovery limit ruling, but LaBarre also appealed the merits of summary judgment.
A failure to warn claim, as we have said a few times, should be the only potentially viable claim in almost all prescription drug cases because of how drugs are actually prescribed. These warnings claims, in turn, properly hinge on prescriber testimony about whether a different warning would have changed what the prescriber did with the plaintiff. While the substance of their testimony is not discussed on appeal, it is obvious that the defendants’ motions to stay discovery and for summary judgment were filed right after the depositions of the prescribing physicians for a reason. If the prescribers had testified “despite all the information in the label about the bleeding risk, I did not appreciate it and a stronger warning would likely have caused me to prescribe something else,” then there would have been very different cases. That would have been surprising testimony where the plaintiff’s decedent was being prescribed a drug to alter his coagulation after a heart attack in the hopes of avoiding another heart attack. Doctors, and most heart patients, understand that the risks of clots and bleeds are inversely related. As it was, plaintiff claimed she could make out a failure to warn claim based on allegedly inadequate warnings as to the product’s efficacy. “Under Florida law, a manufacturer’s duty to warn physicians only extends to the risks or dangers posed by a drug.” Id. at **12-13. With a nice little discourse on judicial restraint for courts sitting in diversity, the appellate court refused to extend Florida law to make a claim for failure to warn about the prescription drug’s efficacy. Id. at **10 n.7 & 13. In addition, because plaintiff offered no expert on any aspect of the drug’s label, she could not make a claim for failure to warn, whether based on efficacy or the risk of bleeding. Id. at **13-14. Summary judgment on failure to warn affirmed.