Tuesday, November 17, 2009

Doing Good By Doing Well

We just love to see our victories put to good use by other lawyers in later cases.

So we got a big kick out of Pustejovsky v. Wyeth, No. 4:07-CV-103-Y, 2009 U.S. Dist. LEXIS 101513 (N.D. Tex. Sept. 4, 2009).

We didn't get a big kick out of the facts, since we had nothing to do with them: Dr. Collini prescribed generic Reglan to treat Pustejovsky's acid reflux. After using the drug for three years, Pustejovsky developed the movement disorder "tardive dyskinesia." She filed a product liability complaint against assorted manufacturers of generic Reglan.

In earlier decisions, the trial court denied PLIVA's motion for summary judgment on the ground of preemption and granted Wyeth and Schwarz Pharma's motions because they hadn't manufactured the drug that Pustejovsky ingested. Id. at *3-4. In the new decision, PLIVA sought summary judgment based on the learned intermediary doctrine.

The treating physician, however, hadn't relied on anything PLIVA said in deciding to prescribe the drug. Dr. "Collini had not read the package insert . . . and, as a result, did not rely on the warnings included by PLIVA in deciding whether to prescribe" the drug. Id. at *9. "Instead, Collini relied on what she learned in medical school, continuing medical education, her own experience, and the experience of her colleagues in weighing the risks and benefits" of the drug. Id. "Because Collini was aware of the possible risk involved . . . but decided to prescribe it to Plaintiff anyway, the allegedly inadequate warning was not a producing cause of Plaintiff's injury." Id.

Fine, fine, fine.

But we weren't tickled until we read the last chunk of the decision.

Pustejovsky argued that, "based on testimony by other, non-treating doctors, Collini 'would likely have modified her practice as well.'" Id. at *10. The argument is that, even though this particular treating physician denied that the package insert affected her decision to prescribe, other physicians said that a different label changed their prescribing habits, and proof of what others did should suffice to avoid summary judgment.

That issue was front and center back when Herrmann briefed and argued, and Bexis supported with an amicus brief (are we an ugly tag team, or what?) the defense position in Ackermann v. Wyeth, 526 F.3d 203 (5th Cir. 2008). There, the Fifth Circuit went our way, holding that (at least under Texas law) the issue is the subjective conduct of the actual treating physician, not an objective standard of how a supposedly "reasonable" physician would have acted. (That argument is at pages 32 to 36 of Wyeth's opening brief in Ackermann; the brief is available on Westlaw at 2007 WL 5746840.)

In Pustejovsky, the Northern District of Texas naturally followed the Fifth Circuit's lead. The court held that evidence of what non-treating physicians would have done was "too speculative to rebut Collini's unequivocal statements that she did not rely on or even read PLIVA's warning in prescribing" the drug. Pustejovsky, 2009 U.S. Dist. LEXIS, at *10. Additionally, Pustejovsky "must rebut PLIVA's evidence showing that an allegedly proper warning would not have changed the decision of Collini, the treating physician." Id., citing Ackermann (bold in original).

That's proof that defending pharmaceutical product liability cases is a team effort. You scratch our precedent; we'll scratch yours. Keep up the good work.

1 comment:

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