DEAR DOCTOR LETTERS
the very information” that allegedly should have been in the Dear Doctor
letter.123 The court reasoned that if that knowledge did not change
Dr. Packer’s conduct after the procedure, receiving the proposed Dear
Doctor letter (conveying that same knowledge) before the procedure would
not have changed his conduct during the procedure.124 The court then
concluded that “a reasonable jury could not find a causal connection”
between the alleged warning defect and plaintiff’s injuries.125 This holding
suggests that plaintiff’s counsel should try to elicit treating doctor testimony
that his or her practice has changed after what happened to plaintiff, while
defendants should try elicit testimony that the treating doctor continued to
do all the things the same way, despite plaintiff’s injuries.
c. Bartlett v. Mut. Pharm. Co., Inc., 731 F. Supp. 2d 135 (D.N.H. 2010)126
Bartlett is a pre-Mensing case where the District Court of New
Hampshire granted summary judgment on plaintiff’s failure-to-warn claim,
though not on all claims, after finding no evidence that plaintiff’s treating
doctor read the generic drug’s package insert.127 While the court in Bartlett
could have dismissed plaintiff’s failure-to-warn claim more summarily
post-Mensing (because it involved a generic drug manufacturer), the case
nonetheless provides noteworthy analysis and rejection of plaintiff’s
“speculative” Dear Doctor letter causation arguments,128 which are arguably
still good law.
In Bartlett, the plaintiff sued generic drug manufacturer Mutual
Pharmaceuticals (“Mutual”) after experiencing severe side effects from the
drug sulindac—a non-steroidal anti-inflammatory drug (“NSAID”).129
Within weeks of taking the drug, the plaintiff was diagnosed with Stevens-Johnson Syndrome (“SJS”), progressing to toxic epidermal necrolysis
(“TEN”)—a potentially fatal condition involving necrosis, or death, of the
skin and mucous membranes.130 The plaintiff suffered from a two-month
coma and permanent injuries, including blindness.131 The sulindac label
expressly listed SJS/TEN as a potential adverse reaction in the “Adverse
Reactions” section, and warned about “severe skin reactions” that could
126. A petition for writ of certiorari in the Bartlett case was filed by Mutual
Pharmaceutical Company, Inc., on July 31, 2012 (Docket No. 12-142).
127. See Bartlett v. Mut. Pharm. Co., Inc., 731 F.Supp.2d 135, 141 (D.N.H. 2010).
128. Id. at 149.
129. Id. at 142.