DEAR DOCTOR LETTERS
lead to fatalities, without mentioning SJS/TEN by name in the “Warnings”
Dr. Ergin, who prescribed Clinoril (the brand name version of sulindac)
for the plaintiff, admitted that he never reviewed the sulindac label before
treating plaintiff and that “nothing about it influenced [his] prescribing of
the drug or what he told Bartlett about it.”133 Dr. Ergin further testified that
“without reading the warning label [he] knew from his medical background
that Sulindac and other NSAIDs carried some risk of causing SJS/TEN.”134
Nonetheless, he claimed that if there had been “strong warnings in place
about what may well be a higher risk of severe reactions like SJS and TEN
with [s]ulindac . . . he likely would have prescribed a different drug for
Bartlett that carried less risk of SJS/TEN.”135 Dr. Ergin admitted that he
still prescribes sulindac “on rare occasions, even after learning of Bartlett’s
Mutual argued that causation was lacking because Dr. Ergin never
reviewed the label.137 The court agreed, holding that “even assuming
arguendo that Mutual had a duty to strengthen the SJS/TEN warning on its
[s]ulindac label, that stronger warning would not have affected Dr. Ergin’s
decision or prevented Bartlett’s injuries” because he did not read the
label.138 Even if the heeding presumption applied under the applicable state
law (New Hampshire), Dr. Ergin’s testimony rebutted that presumption by
making clear he did not review the label; and thus, would not have heeded
any changes to it.139
Enter again the Dear Doctor letter causation argument, which in Bartlett
was raised by the court sua sponte, among other non-label arguments,
during the summary judgment oral argument.140 Plaintiff “seized the
opportunity” and argued that Dr. Ergin would have heeded a stronger
warning sent out in a Dear Doctor letter.141 The court rejected the
132. Id. at 142-43.
133. Bartlett, 731 F.Supp.2d at 143 (internal quotations and citation omitted) (Dr. Ergin
also did not review the Clinoril label “in detail” before treating plaintiff.).
135. Id. (internal quotations and citation omitted).
137. Id. at 146.
138. Id. (Plaintiff also argued that Dr. Ergin’s review of the identical label for the
brand-name drug, Clinoril, could establish causation. Id. However, the court found that Dr.
Ergin’s “cursory review” of that label, which did not include review of the SJS/TEN
warning, showed that even if the warnings had been stronger, “they would not have reached
Dr. Ergin’s attention.”).
139. Bartlett, 731 F.Supp.2d at 147.
140. Id. at 148.