By now, we are all familiar with the common tactics in medical device and pharmaceutical product liability litigation for eliciting favorable physician testimony at deposition to defend against failure-to-warn claims: confirm that the product insert included all of the alleged risks; confirm that the physician did not read the product insert; and establish that the physician was independently aware of the alleged risks. But far too often, even in the face of good physician testimony, summary judgment is defeated by the response to four little words: “if you had known.” Plaintiffs’ counsel commonly employ hypothetical “if you had known” scenarios to convince treating physicians that yes, had they known of a certain injury or increased risk, they would not have prescribed the treatment in the first instance. Many courts find this testimony sufficient to create a fact question for a failure-to-warn claim. But if you can anticipate the questions to be asked, and be prepared to debunk them, you will be well positioned to avoid the “if you had known” trap.

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