Of Pro Se Plaintiffs and Drug Warnings

My two-year-old son had an ear infection last week and, like a good mother, I took him to the pediatrician, who prescribed a liquid antibiotic with a name that, despite my seven years of higher education, I cannot pronounce.  Waiting for him to finish his supper that night, I began to read the fine print.  Apparently, in addition to ear infections, the antibiotic can be used to help treat an STD that I also cannot pronounce, and had to look up on Google.  What can I say? You learn something new every day.  I learned that I might never again read the insert on a prescription drug.

What does this have to do with products liability?  Warnings, people.  Warnings.  I just admitted to the blogosphere to never having read the fine print on a drug before, and I have vowed to never do so again.  Products liability law, however, knows this and has adapted – as illustrated by the case of Rice v. Genentech, Inc., No. 1:10-CV-3631-TWT, 2012 WL 205886 (N.D. Ga. Jan. 24, 2012).

This case is nothing special: an extremely short decision outlining the reasons that the defendant, drug maker Genentech, was granted summary judgment against a pro se plaintiff who alleged that Genentech’s eye drug, Lucentis, exacerbated the plaintiff’s glaucoma and sight loss.  Basically, the plaintiff failed to name an expert, despite several deadline extensions to do so.

In this unremarkable decision, however, is a reminder about the law regarding warnings and prescription drugs:  “Prescription drug manufacturers have a duty to warn the patient’s doctor of the dangers involved with their product rather than warn the patient directly.” (emphasis added).  The decision also cites the rule of thumb regarding experts in drug cases like this one – “in cases of pharmaceuticals, since the warning is directed to physicians, only they or someone with similar expertise concerning pharmaceuticals would be qualified to determine whether or not the warning was adequate” (internal quotations and citations omitted).

Well, there you go.

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