DEAR DOCTOR LETTERS
box them in at trial. And, we have seen no plaintiffs dare to ask if the
doctor would have done anything differently had he or she reviewed a
specific Dear Doctor letter. After all, the answer could very well be, “no, I
would have prescribed the same medicine all over again”—and out goes the
plaintiff’s Dear Doctor letter argument, and the chance to survive summary
judgment. Instead, plaintiff’s counsel will usually ask the more benign
question: “Doctor, if you had received a Dear Doctor letter, would you have
followed what it said?” Without any context for what the Dear Doctor
letter would instruct, most doctors of course say yes—why would they not
follow an FDA-approved letter with important drug information?
However, it is not only plaintiffs that shy away from asking the pointed
question of whether a particular Dear Doctor letter would have made a
difference. Defense counsel fears asking that question, too, as there is a
chance that the doctor, accustomed to following instructions in Dear Doctor
letters, will say “yes, I would have done things differently.” It is far safer
for the defense to argue on summary judgment that there is “no evidence”
that a Dear Doctor letter would have avoided plaintiff’s injury.
b. Kapps v. Biosense Webster, Inc., 813 F. Supp. 2d 1128 (D. Minn. 2011)
Kapps v. Biosense Webster, Inc. is a district court case that, like
Rodriguez, rejected the Dear Doctor letter causation argument because
plaintiff could not show that his doctors would have done anything
differently if defendant had sent out a Dear Doctor letter.96 Kapps provides
an interesting twist, because the plaintiff actually braved crafting the
content of the proposed Dear Doctor letter and was criticized soundly for
it.97 Like Rodriguez, Kapps does not close the door to other plaintiffs
making out successful Dear Doctor letter arguments on a different set of
facts, but it does provide ample ammunition for defendants seeking to
defeat Dear Doctor letter causation arguments.
In Kapps, plaintiff sought to recover for injuries he suffered when the tip
of a catheter—made by defendant Biosense Webster (“Biosense”)—
snapped off and became entangled in the mitral valve of his heart.98
Plaintiff suffered pericardial bleeding and damage to his mitral valve, which
required treatment with open-heart surgery.99 The catheter at issue was sold
by Biosense to the Mayo Clinic and used in a patient other than plaintiff.
Then, contrary to Biosense’s instructions to use the catheter only once, the
Mayo Clinic sent the used catheter to defendant Ascent Healthcare
96. Kapps v. Biosense Webster, Inc., 813 F. Supp. 2d 1128, 1156 (D. Minn. 2011).
98. Id. at 1133.