DEAR DOCTOR LETTERS
Wong, there was “not a shred of evidence in the record that” a Dear Doctor
letter warning would have changed anything about how the heart procedure
was done.116 The court rejected the argument that the heeding
presumption— i.e., the presumption that if a product comes with a warning,
it will be read—could establish the effect of the Dear Doctor letter on Dr.
Wong.117 Minnesota, providing the applicable state law, had not adopted
the heeding presumption.118 Even if it had, the presumption would not have
helped Kapps: “What is presumed under the heeding presumption is that the
omitted warning would have been heeded, not that the heeding of the
omitted warning would have prevented the plaintiff’s injury.”119 In the
instant case, however, there was no evidence that if Dr. Wong “had heeded
the warning to be very careful, he would have done something differently,”
and thus there was “no evidence that the absence of that warning caused
We find it odd that neither plaintiff nor defendant chose to depose Dr.
Wong; typically, it is in both parties’ best interests to depose all of the
treating physicians to develop their case theories and defenses. While the
court in Kapps suggests that in some cases there is a tactical advantage in
favor of the defense to not depose a treating doctor, we would not
recommend this as a general rule to either plaintiffs or defendants. For
plaintiffs, this could be the issue keeping them from surviving summary
judgment. Even in states with heeding presumptions, the presumptions may
not be sufficient to create a triable issue of fact regarding whether the
doctor would have done something differently based on the Dear Doctor
letter. As for defendants, they are ill advised to forego deposing a treating
doctor and thus have no indication of what that doctor will say at trial—
including, theoretically, that plaintiff’s proposed warning would have made
all the difference.
Finally, the court noted in Kapps that the deposition testimony of Dr.
Packer, who supervised Dr. Wong and was in charge of extricating the
catheter once it was entrapped, provided even further support that the
proposed Dear Doctor letter would not have prevented plaintiff’s injuries.121
Dr. Packer testified that he “has not changed anything about how he uses”
the catheter at issue despite what happened during plaintiff’s procedure.122
In fact, plaintiff’s procedure gave Dr. Packer “direct personal knowledge of
117. Id. at 1157 n.22.
121. Id. at 1158.