The doctor is dead.

For plaintiffs bringing product liability actions against pharmaceutical drug and medical device manufacturers, this usually sounds the death knell for their failure to warn claims. That is because a plaintiff has the burden of proving that the physician would have changed his or her prescribing decision if provided a different, adequate warning. If the doctor is dead (or far less dramatic, simply unavailable to testify), the plaintiff cannot establish her cause of action, and her claim is dismissed.

But some states turn that rule on its head. In states that have adopted the “heeding presumption,” the law assumes that the physician would have read—and heeded— the proposed adequate warning. While every state that has adopted the presumption has recognized that it is rebuttable—that is, that the opposing party may present evidence to the contrary—it is nearly impossible to rebut the presumption at the summary judgment stage as a matter of law where the defense is unable to secure testimony from an unavailable prescribing physician.

Once at trial, the negative manifestations of the heeding presumption are palpable: directed verdict is possible, and a devastating jury instruction is almost inevitable. But with some forethought during the course of discovery, alternative legal arguments can be made and evidence sought to allow traditional causation principles to arise from the ashes.

Read the article here.