DEAR DOCTOR LETTERS
argument, finding “no evidence about whether Dr. Ergin has a practice of
reading such letters” and “little, if any, evidence about the process for
distributing such letters.”142 Accordingly, the court found “any causation
theory based on a ‘Dear Doctor’ letter... purely speculative.”143 Of
course, the finding in Bartlett that the Dear Doctor letter is “purely
speculative” is easily distinguishable from cases with testimony from the
treating doctor that he or she routinely reviewed and relied upon Dear
Doctor letters, and that the proposed Dear Doctor letter in the instant case
would have changed the plaintiff’s treatment.
What is not-so-distinguishable is the finding in Bartlett that Dear Doctor
letter arguments (and other non-label theories)
[r]est upon a dubious proposition: that even if [defendant] had
strengthened the [subject] warning on its [drug] label . . . that still would
have been a legally inadequate warning unless [defendant] took additional
steps beyond the label to disseminate such information. [Plaintiff] has not
identified any authority or evidence for that proposition.144
In other words, like in Rodriguez, plaintiff should have the burden of
showing that a change to the label would not have been an “adequate”
warning, and that only a Dear Doctor letter would have provided an
2. Cases (Indirectly) Supporting the
Dear Doctor Letter Causation Argument
As with many areas in products liability, there are cases that oppose
Rodriguez, Kapps, and Bartlett’s rejection of Dear Doctor letter causation
arguments. We suspect that as the case law develops, there will be more
cases giving credence to the Dear Doctor letter causation argument—
particularly as plaintiffs succeed in establishing stronger evidentiary bases
for the argument.
a. Winter v. Novartis Pharms. Corp., No. 06-04049-CV-C-NKL, 2011
WL 5008008 (W.D. Mo. Oct. 20, 2011).
Winter v. Novartis is a paradigm case where the plaintiff’s doctor did not
review the subject drug’s package insert, the defendant moved for summary
judgment on lack of causation for the failure-to-warn claim, and
nevertheless, the district court allowed the plaintiff to proceed to trial.146
142. Id. at 149.
145. See supra Section III( B)(1)(a) (citing Rodriguez, 680 F.3d at 576).