Well, yesterday the Fifth Circuit affirmed. With so many strikes against the plaintiff, the affirmance was not for publication, but if you're preparing for a treater deposition and want to see what really good "I already knew" non-causation testimony looks like - and can do - this opinion is worth a gander. Ebel's discussion of the burden of proof is also worth noting, because the court rejects the contention that the learned intermediary rule is an affirmative defense as to which the defendant, rather than the plaintiff, had the obligation to prove. Slip op. at 11-12. The court also rejects the "read and heed" presumption under Texas law. Id. at 12 n.5, 14.
Reading Ebel, we have to shake our heads over what some plaintiffs are willing to argue these days. That the plaintiff (seeking to take the defendant's money, and thus change the status quo) has to prove the elements of his/her cause of action is a proposition as old as tort law itself. But Ebel argued that requiring her to prove causation was “completely inimical to Texas products liability law.” Slip op. at 12. Needless to say, the court rejected that position, id., ("indeed, it is required by Texas law"), but one wonders what a litigant has to argue before a court concludes "frivolous" and imposes sanctions.
The court also gives a slightly different twist to causation. In Ebel it was readily apparent that the decedent needed some kind of treatment for his condition (severe headaches). He had gone through dozens of other drugs without success, and off-label Zyprexa was sort of a last resort. In those circumstances, it was not a viable argument simply to say that the doctor, or the patient, might not have prescribed/used this drug had there been an "adequate" warning. Rather, the plaintiff had to show that there was some sort of alternative available:
[Plaintiff] presented no evidence to suggest that [the prescriber] would have changed either his decision to prescribe Zyprexa or his risk–benefit analysis had he received some alternative warning concerning Zyprexa. Indeed, the record indicates that Zyprexa was perceived to be the last remaining treatment option available to [the decedent] after he had tried upwards of forty-five other medications to no avail.... [Plaintiff] has produced no evidence demonstrating that [the prescriber] would have prescribed anything other than Zyprexa at that time. For these reasons, [plaintiff] has failed to show that a genuine issue of material fact exists as to whether [defendant's] warning was the producing cause of [the decedent's] death.
Slip op. at 14. There aren't many cases out there that explore the need for the plaintiff to establish an available alternative therapy as part of the burden of proving causation, so even though Ebel is (regrettably) unpublished, we recommend it particularly on this point.