FDCC BLOG

Part 8-What I've Learned

Tue, 15 May 2012 10:59:00 -0400

71. Boring gets a bad rap. Boring is playing by the rules, sticking to the fundamentals and working hard. If you’re called “boring,” take it as a complement. “Boring” is a term often tossed around by those whom “boring” folks would call “irresponsible.”

72. A handwritten note can make a person’s day. Invest in some stationary.

73. Three things tell a lot about a person – 1) how they react to a canceled flight; (2) how they react to losing a motion; and (3) how they react to an empty coffee pot.

74. Find a hotel chain that meets your needs and stick with it whenever you travel on business. For me, it’s Hampton Inn. It’s reasonably-priced, clean, comfortable bed, exercise amenities, free coffee 24/7, and free breakfast. Stay enough times and you earn free nights when you’re traveling for pleasure.

75. Why you do something is more important than what you’re doing.

76. Ignoring facts won’t change them. A bad case is a bad case.

77. You can’t change the facts. Often, you’re most important job is to uncover all the facts, good and bad and advise the client of the possible outcomes.

78. Our childhood shapes us as adults. When I was a kid, my parents couldn’t afford to take me to the movies. Now I go every chance I can. Things we missed out on as kids often motivates us as adults. Learn about others’ childhoods and you’ll learn what motivates them.

79. Yelling never helped.

80. Good posture is a huge confidence booster. Add a smile.

Locomotive Inspection Act Pre-empts State Tort Law Claims

Thu, 10 May 2012 18:47:00 -0400

In Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261 (2012), the Supreme Court considered whether Federal railroad safety laws pre-empted a rail worker from suing a railroad parts manufacturer under a more protective state regulation for his asbestos-related injuries. From 1947 to 1994, the decedent worked as a welder, machinist, and supervisor for a rail company, and much of his job involved removing insulation from locomotive boilers and installing brake shoes on the locomotives. Plaintiffs claimed that during this time period the decedent was repeatedly exposed to asbestos from asbestos insulation and asbestos-containing brake shoes. After decedent’s retirement, he was diagnosed with malignant mesothelioma, the only known cause of which is exposure to asbestos.

Plaintiffs sued the railroad parts’ manufacturers and distributors of the locomotives and locomotive parts. Plaintiffs alleged that the decedent contracted mesothelioma as a result of exposure to asbestos in the defendants’ products, and that the products did not carry warnings about the dangers of asbestos. The Defendants admitted to manufacturing asbestos-containing products and failing to provide specific product warnings under state law.

The United States District Court for the Eastern District of Pennsylvania rejected Plaintiffs’ claims, contending that they were barred by the Locomotive Inspection Act (“LIA”), which provided that a railroad carrier may only use a locomotive that is in proper condition and safe to operate without unnecessary danger of personal injury. The United States Court of Appeals for the Third Circuit affirmed. The Supreme Court was asked to decide whether Congress intended the Federal railroad safety acts to pre-empt the state law-based tort claims of failure to warn and design defect.

Federal railroad regulations were silent as to warnings for asbestos-containing products. The Defendants moved for summary judgment, arguing that the claimants were pre-empted by the LIA which, they argued, occupied the entire field of such claims pursuant to Napier, which held that pre-emption “extends to the design, the construction, and the material of every part of the locomotive being tendered and of all appurtenances.” The Supreme Court was persuaded by the Defendants’ argument that the LIA controlled the entire field of regulation of railroad parts manufacture and use, and therefore, found the state tort claims were pre-empted. The Court relied mainly upon Napier.

Judge Thomas’ opinion for the majority made it clear that failure-to-warn claims fall fully within the field of claims governed solely by federal regulation, not state-based tort law. The opinion concluded, “a failure-to-warn claim alleges that the product itself is unlawfully dangerous unless occupied by sufficient warnings or instructions. . . . Because Petitioners’ [Plaintiffs’] failure-to-warn claims are therefore directed at the equipment of locomotives, they fall within the pre-empted field defined by Napier.” Thus, the Supreme Court held that the LIA pre-empted the state law design defect claims and the state law failure-to-warn claims. The Court emphasized that state law must yield to a Congressional act, to the extent of any conflict with a Federal statute, even if there is no express pre-emption. The Court further determined that the Federal Railroad Safety Act did not change the scope of the LIA.

Submitted by Marisa A. Trasatti and Kevin M. Cox of Semmes, Bowen & Semmes

Part 7-What I've Learned

Wed, 09 May 2012 16:10:00 -0400

61. Send the judge a courtesy copy of your motionand a copy of the cases you cited and bring an extra copy to the hearing. Bring a blank order and don’t leave the judge’s chambers until you have hashed out the language of the order and the judge has signed it.

62. If it wasn’t reduced to writing, it didn’t happen. Remember that when dealing with opposing counsel and with your own client.

63. When preparing your client for deposition,make sure to review with him every document you expect opposing counsel will show him at his deposition. Deposition is not the place where your client should see documents for the first time.

64. Do a mock cross examination of your client. Ask your client the questions the other side will ask – tough questions, asked in an aggressive manner. Don’t pull any punches. You’re not doing the client any favors by doing anything less than opposing counsel will. After you’re through with him, the deposition will be a cake walk. He won’t thank you during the prep session. He will, though, after the deposition is over.

65. Don’t write anything to an expertthat you would not want the other side to see. It may end up in opposing counsel’s hands.

66. Do you want to get the goods on a partywho claims he is permanently disabled because of your client’s negligence? Get his credit card records. What expenses might you find? Charges for a gym membership, repeated outings to restaurants, plane tickets to exotic locations and sports equipment, to name a few.

67. Write your own obituary. Write out how you want others to remember you. Now spend a lifetime trying to live up to that description.

68. Your clients have their problems. You have yours. Keep them separate.

69. Your firm has a mission statement. You should have one too. So should your family.

70. Explain your case to a non-lawyer. A spouse, a friend, a family member. If they don’t understand it or don’t agree with it, the jury likely won’t either.

Part 6-What I've Learned

Tue, 01 May 2012 21:54:00 -0400

51. Everyone has his own way of doing things. When serving the needs of a client, partner or judge, serve his needs, not some generic recipient of your services. To do that, get to know your recipient – what he likes and what he doesn’t.

52. Make a list of your strengths and weaknessesas a lawyer. Pick one of your weaknesses and work on it this year. If you write poorly, read some books on writing, maybe take a class. If you are a poor public speaker, consider joining Toastmasters. Tackle the weaknesses, one at a time.

53. Also make a list of your goals for the next year. So many of us have a strategy when it comes to our cases, but many of us do not have one when it comes to our lives.

54. Know your opposing counsel. Look at his website, his jury verdicts and published opinions. Ask around about the type of lawyer he is.

55. Know your judge. Read the appellate opinions that have upheld his rulings and those that have overturned them. Know what his judicial philosophy is and most importantly, what his pet peeves are.

56. Jury verdicts are a great way to calculate what the non-economic damages claims are worth.

57. Prepare every case as if it’s going to trial, not as if it’s going to settle, even though most do.

58. Always keep a clean desk. You look like you are in control when you do, even if secretly, you are not.

59. A complaint is a ticking time bomb. A good plaintiff’s attorney has investigated his case, has lined up his witnesses, has procured his documents and has developed his case theme before he has filed suit. He is waiting for you to answer to set the case for trial. It’s up to you to diffuse that bomb and you don’t have much time to do so.

60. Even if the other guy filed the complaint,you direct the litigation. Be proactive.

Part 5-What I have Learned

Thu, 26 Apr 2012 01:29:00 -0400

41. Have a theme for your life. What are you trying to accomplish? When it’s all said and done, and your career is over, what do you hope to have done with your life? Don’t settle for figuring out what your cases are really about. Figure out what you are really about.

42. Writing is all about nouns and verbs. Adverbs, adjectives and prepositions are overrated.

43. Actually, writing is all about verbs.

44. Extra wordsare the enemy. Eradicate them.

45. We all have short attention spans. When you write a motion, memo or letter, make your point up front, hit the highlights and stop writing.

46. Argue your motion out loudbefore a hearing. It’s one thing to see your arguments written down on paper. It’s quite another to listen to how they sound.

47. Put yourself in the shoes of the judge and opposing counsel. Anticipate the other side’s arguments and the judge’s likely questions. Thinking this way avoids surprises at hearings.

48. There are no rough drafts. Whether you are sending a motion, memo, letter or e-mail to a client, partner or someone junior to you, treat it as if it is going to the CEO of your biggest client.

49. Get involved. Being a good lawyer entails so much more than working on your cases. If you want to grow and develop, join a voluntary bar association or two and volunteer your time. The relationships you will develop in these organizations will be priceless.

50. Jury selection isn’t so much about picking the good jurors as it is about excluding the bad ones.

Part 4-What I have Learned

Sat, 21 Apr 2012 01:27:00 -0400

31. When you first get a case, call opposing counsel and introduce yourself. It's harder for an attorney to be unprofessional if he's had a pleasant conversation with opposing counsel.

32. When the other side starts objecting during a deposition, you've tripped over something. When he starts making speaking objections, you've hit pay dirt. Keep digging.

33. When the other side vigorously objects to a request for production, there is a good chance you're about to unearth the proverbial smoking gun. It may take a motion or two to get it, but it will be worth the effort.

34. Instant oatmeal is great. Pour a pack into a styrofoam cup, fill with hot water, and voila, breakfast at the office.

35. If you are going to have breakfast at the office, make it a point to have breakfast with your kids on the weekend.

36. The first thing you do-read the jury instructions. They will be your road map for the entire case. They tell you what the parties have to prove, what the defenses are and whether you stand a chance of winning or not.

37. If you want your clients to be happy, act like the waiter at your favorite restaurant. At my favorite restaurant, the waiter sits us at our table, makes sure we have plenty of bread, brings out the kids meals first and keeps the soda glasses filled. He knows our needs, meets them and does it all with a smile. Provide that quality of service to your clients and they will keeping coming back.

38. Funny thing. The food at that restaurant is good, but not great. We come back for the service.

39. You can't win without a theme. Start developing the theme of your case early. Every interrogatory you propound, every motion you file and every deposition you take should be done to advance that theme. If you wait until two weeks before trial to develop your theme, it's too late.

40. However, don't be married to a theme. As your case develops, your theme must develop. During the course of litigation, you may pick up and drop a half a dozen themes on the way to finding one that is worth holding onto.

Part 3-What I have Learned

Mon, 16 Apr 2012 21:15:00 -0400

21. Your kids are always watching you. Live accordingly.

22. Work as if you’re kids are watching you.

23. Return messages promptly. In this age of Blackberries, I-Phones and other technology, the 24-hour-rule is an anachronism. Try 1 hour.

24. The attorney who was disbarred for misappropriating client funds started years ago by fudging on the little things. Don’t start down that path.

25. Banging on the monitor won’t make the computer work better.

26. Learn how to use the postage machine. It’s only a matter of time until you’ll have to mail a letter after hours. While you’re at it, learn how to make two-sided copies, how to scan documents and how to send an overnight package.

27. Showme a lawyer who works hard and I will show you a lawyer, who sooner or later, is going to make it.

28. Instead of reading your kids bedtime stories, make them up yourself. Make your kids the protagonists. Have them fight ogres, slay dragons and seek buried treasure. They’ll ask for more.

29. Most emergenciesare self-made.

30. Before sending anything out, proofread it at least twice. Three times is preferable. And proofread out loud.

Locomotive Inspection Act

Thu, 12 Apr 2012 21:06:00 -0400

Locomotive Inspection Act Pre-empts State Tort Law Claims For Design Defects And Failure-To-Warn in Asbestos Exposure Case

InKurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261 (2012), the Supreme Court considered whether Federal railroad safety laws pre-empted a rail worker from suing a railroad parts manufacturer under a more protective state regulation for his asbestos-related injuries. From 1947 to 1994, the decedent worked as a welder, machinist, and supervisor for a rail company, and much of his job involved removing insulation from locomotive boilers and installing brake shoes on the locomotives. Plaintiffs claimed that during this time period the decedent was repeatedly exposed to asbestos from asbestos insulation and asbestos-containing brake shoes. After decedent’s retirement, he was diagnosed with malignant mesothelioma, the only known cause of which is exposure to asbestos.

Submitted by Marisa A. Trasatti and Kevin M. Cox of Semmes, Bowen & Semmes

Part 2-What I Have Learned

Tue, 10 Apr 2012 21:41:00 -0400

Part 2-What I've Learned 11. I assume I don't have much time on this earth. I live life like I won't see my 45^th birthday. I'm 39. It’s amazing the perspective you get when you think you have six years to live.

12. When you get to the hotel room, run the hot water and let the steam fill the bathroom. Hang the suits and shirts from your garment bag nearby. You’ll be surprised how many of the wrinkles will vanish.

13. The key to the practice of law is preparation. I would rather go up against an experienced lawyer who is lazy than an inexperienced one who works his butt off.

14.>Always visit the accident site in a personal injury case. And always meet your client at his place of business. There’s no substitute to seeing something with your own eyes.

15.Never let another’s behavior dictate yours. No matter how obnoxious or insulting that other lawyer is, don’t respond in kind.

16. When I’m lying on my death bed, I’m not to going to be thinking, “I should have billed more hours.”

17. Take a long term view of things. It helps keep everything in perspective.

18. Always keep the client informed. Make sure the client knows what is happening in his case, what the problems are and what you are doing to address them. Listen to the client and seek his input when formulating a case strategy. Clients hate surprises. One surprise too many, and that client will look elsewhere for legal advice.

19. Before you spend the client’s money, whether it is to do research, draft a motion or hire the expert, make sure the client knows of the expense and approves it. It’s their money.

20. A client you speak with, write to and e-mail frequently is often very forgiving of the mistakes you make.

What I've Learned

Wed, 28 Mar 2012 20:21:00 -0400

After practicing a few years, we all develop “What I’ve Learned” lists, nuggets of wisdom to pass on to others. I strongly recommend you jot down your own list. You’ll surprise yourself how much you’ve picked up along the way. The following is my list.

1. If you want to know a lawyer’s true character, see how he treats his secretary when he thinks no one else is looking. Better yet, how he treats the runner.

2. Professionalismis treating the cleaning staff that comes after hours the same way you treat the judge during motion calendar.

3. You don’t need a pen and pad to write. Take advantage of the quiet times – the first few minutes after you wake up, when you’re in the shower, when you’re driving to work – to think through that memo or brief you’re stuck on or that legal argument that doesn’t quite work.

4. I would rather drive 3 ½ hoursthan go through airport security to catch a 45 minute flight.

5. I do my best writingwhile I’m driving.

6. Don’t let your standard of living increaseevery time your salary does. There’s nothing wrong with driving a car with over 100,000 miles or living in a working class neighborhood. Frugality gives you options in life.

7. But don’t be frugal when it comes to your shoes. You have to wear them 10 to 14 hours a day. How do you say good-looking and comfortable? Two words – deer skin.

8. Learning from your mistakes is experience. Learning from others’ mistakes is wisdom.

9. Mentors are great. You get to learn from their mistakes.

10. Cross examination isn’t just for depositions or trial. You can learn a lot about what’s going on in your kids’ lives if you keep asking them questions.

Anonymous Internet Commenting Isn’t So Anonymous

Wed, 28 Mar 2012 14:42:00 -0400

We have all heard it, and we are probably getting tired of hearing it. Watch what you post on Facebook, Twitter, and other social media platforms. The potential problems are numerous. On most social media, you are readily identifiable. The consequences range from “merely” a poor reflection on your judgment to violation of ethical rules.

But what about more anonymous online postings?

As a federal prosecutor in New Orleans recently learned the hard way, posting online under a pseudonym does not offer much protection. Veteran prosecutor Sal Perricone posted more than 600 comments on the New Orleans Times-Picayune’s Web site under the handle “Henry L. Mencken1951.” This would seem innocuous enough, except that Perricone commented on stories about targets of federal investigation. And, typical of many anonymous online commenters, he did not exactly play nice.

Perricone was investigating a New Orleans landfill. On online newspaper stories about the landfill, Perricone repeatedly insulted the landfill’s co-owner, who was not personally under investigation. The co-owner became suspicious and hired an expert in forensic linguistics, who compared Perricone’s online comments to a legal brief he wrote and found striking similarities. The landfill’s co-owner has filed a defamation suit against Perricone.

Perricone admitted to making the comments and has been removed from all matters related to his comments. He was referred to the Justice Department’s Office of Professional Responsibility and could face further punishment.

How did this happen? Perricone is not talking, but it does not appear that he considered the possibility that his comments could be traced back to him. Age may have played a role here, as Perricone is 60 and may not have understood that supposedly anonymous online commenting is not necessarily anonymous at all. He probably did not expect that a former FBI expert would be brought in to smoke him out. But even short of such measures, there is good reason to exercise extreme caution with supposedly anonymous online commenting.

In Perricone’s case, there was nothing about his online screen name that indicated who he was. The mere fact that he took such an interest in these particular stories and that he seemed to have peculiar knowledge of the issues was enough to arouse suspicion. And it does not necessarily require an ex-FBI forensic linguist to determine who is posting comments. Login information and IP addresses could have been traced back to Perricone’s computer(s).

You may be saying “this isn’t relevant to me, I’d never be dumb enough to post a case-specific comment on a newspaper’s online edition.” If so, then that is great. But others on your cases, particularly young attorneys, may not realize that online commenting is not as anonymous as it may seem.

A short meeting discussing the issue could be well worth your time. As Perricone found out, the penalties can be harsh. He was removed from certain cases, referred to the professional responsibility office, and got hit with a defamation lawsuit. Most if not all states have ethical rules regarding extrajudicial statements regarding litigation, and particularly careless comments could divulge confidential information and possibly involve attorney-client privileged information.

Scott Kreamer

No Personal Jurisdiction

Mon, 19 Mar 2012 16:52:00 -0400

No Personal Jurisdiction Over Out-of-State Defendant Who Hosted Website and Accepted Dues from Forum State Residents

In Allcarrier Worldwide Servs. v. United Network Equipment Dealer Ass’n, No. AW-11-cv-01714 (U.S. District Court for D. Md., September 22, 2011), the seminal issue was whether the Court had personal jurisdiction over the Defendant, a non-profit organization, that hosted a website and accepted dues from members worldwide, including Plaintiff and thirteen others residing in the forum state. In holding that there was no personal jurisdiction, the Court granted the Defendants’ Motion to Dismiss.

The Court found that Defendant merely provided its members access to a website in which the members, not Defendant, engaged in business transactions related to buying and selling computer equipment. Although it granted access to members internationally, including in Maryland, its role was only “passive.” The Court declined to hold that because Defendant accepted membership dues from Plaintiff and thirteen (13) other residents of the forum state that it was subject to personal jurisdiction there. To find personal jurisdiction in the forum state would require a finding of personal jurisdiction in all states in which members resided and would eviscerate the personal jurisdiction requirements of the long arm statute and the due process clause. Defendant’s ties with the forum state, i.e., the fact that it had a handful of members from the forum state, who signed membership agreements and paid annual dues, was insufficient to support a finding of either specific or general jurisdiction. Consequently, the case was dismissed.

This case is helpful for Defendants who may do business in a state only by virtue of the web, as it limits the practical effect of such conduct on the issue of personal jurisdiction.

Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes

My Cousin Vinny

Tue, 13 Mar 2012 20:42:00 -0400

Twenty years ago tomorrow, on March 13, 1992, the popular legal comedy My Cousin Vinny hit theatres. If you’re a lawyer, you’ve probably seen the film many, many times and quoted it just as often. Written and co-produced by Dale Launer, and directed by Jonathan Lynn, the film stars Joe Pesci as Vincent LaGuardia Gambini, a New Yorker and new bar member defending two capital murder defendants in faraway Alabama. It’s a funny, funny movie. Upon its release, New York Times film critic Vincent Canby noted: “The film has a secure and sophisticated sense of what makes farce so delicious, which may not be surprising, since its credentials are about as impeccable as you can find in the peccable atmosphere of Hollywood.” But there is a truth that accompanies the humor. Jack Garner of the Gannett News Service, writing at the time, saw fit to include this statement in his review: “And a lawyer friend even tells me he found the courtroom segments more natural and believable than he’s seen in some for-more-prestige judicial dramas.” In March of 1993, a full year after the film’s release, actress Marisa Tomei, who played Vinny’s fiancee (and an expert witness to boot), would win the Oscar for Best Supporting Actress at the 65th Academy Awards. Even two decades after its release, the film continues to resonate with lawyer viewers. In 2008, the ABA Journal named it the third best legal film of all time. (The ABA Journal would also name the character of Vinny number twelve on the list of Top 25 fictional lawyers; its readers, in a popular vote, chose Vinny as number one.). We here at Abnormal Use have always been fans of this movie, so we decided to commemorate its twentieth anniversary with a full week’s worth of coverage. As you know, in the past, we have featured interviews with Hollywood celebrities on the anniversaries of the release of their legal themed films, including an interview with the writers and producers of the 1991 film Class Action last year this time last year. However, for this occasion, we’ve gone all out. This week, we’ll be posting interviews with members of the cast and crew, our own thoughts and memories of the film, and links to other bloggers’ anniversary thoughts.

Preventing Admission of Product Recall

Sat, 03 Mar 2012 00:33:08 -0400

With medical device recalls on the rise in recent years, defense attorneys are well-advised to anticipate plaintiffs’ attempting to introduce product recall evidence at trial. Preparation, i.e., knowing the rules of evidence, is the only antidote. The following are key evidentiary objections to consider when attempting to exclude evidence of recall in your case:

Hearsay: The hearsay objection can be successfully implemented to exclude evidence of a recall against a product distributor, as opposed to a manufacturer. Distributor defendants should argue that the recall letters are out-of-court, written statements by the product manufacturers, and are thus, inadmissible hearsay. When the recall letter issued by the manufacturer is introduced by plaintiffs against a manufacturer defendant, however, several exceptions may thwart the application of the hearsay rule. First, the recall notices issued by your manufacturer client is a statement by a party-opponent. Second, Plaintiff may argue, under Federal Rule of Evidence 804(b)(3), that the recall letters are “statements against interest” and as admission by the manufacturer that the product was defective. Third, opposing counsel may argue that records relating to the recall fall under the business records exception, provided by Rule 803(8), allowing the court to admit evidence of the product recall.

Relevance: Relevance may be a successful objection when the recall is: 1) not of the same product; 2) not the same defect; 3) there is no evidence that the product at issue was defective; or 4) the reason for the recall was not the proximate cause of the accident.

Subsequent Remedial Measures: The Subsequent Remedial Measures Rule may exclude the recall evidence, however, the application of this rule will depend on whether the recall was voluntary or involuntary. Fed. R. Evid. 407, which covers subsequent remedial measures, only precludes evidence of voluntary product recalls. If the product recall was involuntary, then it will be admissible. Even if the product recall was voluntary, it still may come in. For instance, the recall evidence may come in if the recall evidence is needed to show control; to show the feasibility of a precautionary measure/alternative design; or to impeach.

There is no silver bullet, unfortunately, when it comes to excluding product recall evidence. In fact, some medical device defendants may be best-served by embracing the evidence of the recall as a demonstration to the jury of their corporate accountability and responsibility. Under this strategy, defense attorneys can then emphasize self-corrective behavior. The more common strategy, however, is to keep the product recall evidence away from the jury because overcoming juror prejudice associated with headline product recalls is a feat. In these cases, the goal is to use the evidentiary tools discussed in this article to keep the evidence out and convince the jury that they are smarter than the Plaintiff.

Defending Products Liability Suits

Mon, 27 Feb 2012 20:08:00 -0400

The False Claims Act (FCA), which prohibits any person from knowingly causing the submission of false claims to the federal government for payment or approval, includes a qui tam provision that allows people who are not affiliated with the government to file actions on behalf of the government. Several states have also created FCA statutes with qui tam provisions. Recently, these acts have been used to bring claims against pharmaceutical companies for marketing drugs and medical devices for off-label uses—uses other than those specified on the product labels approved by the Food and Drug Administration (FDA). As a result, many pharmaceutical companies have paid staggering claims to settle these cases. For instance, Pfizer paid $430 million in 2004 to settle a claim that it encouraged physicians to prescribe the drug Neurontin, to treat bipolar disorder rather than epilepsy (its FDA approved use). As a result, Plaintiffs are increasingly alleging injury from off-label use of medical products in product liability suits against physicians and manufacturers. In the past, the learned intermediary doctrine has served as a powerful defense for manufacturers, but the application of this doctrine in off-label cases has been inconsistent among the states.

By way of background, the learned intermediary doctrine serves as a shield for manufacturers against consumer claims arising from allegations of failure to warn of a product’s risks. Essentially, the doctrine protects manufacturers from liability if they warn physicians of the risks associated with a drug or device. However, physicians commonly engage in off-label use, and it is impossible for manufacturers to warn physicians of every risk associated with all uses of a medical product.

The law regarding the learned intermediary doctrine and off-label use is conflicting. This creates difficulty in determining the best way to defend drug manufacturers in cases involving off-label use. In some jurisdictions, whether the learned intermediary doctrine applies depends on the manufacturer’s knowledge or the foreseeability of the off-label use. In other jurisdictions, the learned intermediary doctrine’s application depends on the manufacturer’s promotion of an off-label use. Still, in other jurisdictions, courts have assumed that manufacturers always have a duty to warn and have not applied the doctrine in the absence of warnings. Finally, some jurisdictions find that the learned intermediary doctrine applies in all cases because physicians use their entire knowledge base and training to determine what is best for the patient.

Given these varied approaches, litigators must look to their state law on the learned intermediary doctrine, specifically involving off-label use, in order to determine the relevant evidence and the likelihood that the learned intermediary doctrine will protect manufacturers sued in that particular jurisdiction.