DEAR DOCTOR LETTERS
plaintiffs plan on making a Dear Doctor letter causation argument, it needs
to be made directly.
The Sixth Circuit in Rodriguez detailed a third and final impediment to
plaintiff’s Dear Doctor letter and direct label arguments: they were simply
not supported by the evidence.92 With respect to Dear Doctor letters,
plaintiff could only point to the following deposition testimony:
Q: A Dear Doctor letter is when a company . . . learn[s] . . . they are
now getting adverse reports on a particular, either machine, or the
drug, [and] they send out a letter called a Dear Doctor letter to warn
the doctors or instruct the doctors of what’s happened?
Q: You have had that over the years, have you not?
A: I have seen that for medications, yes.
This exchange conveys only the unsurprising reality that Dr. Kuhn knew
what ‘Dear Doctor’ letters were, not that he received and reviewed them,
and most importantly not what he would have done with a “Dear Doctor”
letter in this case and not what such a letter would have looked like in this
Plaintiff raised no genuine issue of fact for trial that a Dear Doctor letter
would have caused Dr. Kuhn not to use the Stryker pain pump in plaintiff’s
In Rodriguez, the court implied that a claim for causation could survive a
challenge if a plaintiff did the following to support the Dear Doctor letter
causation argument: (1) obtain testimony that the treating doctor or doctors
would have received and reviewed the proposed letter (and actually
articulate what that letter would have said); and, (2) obtain testimony that
the treating doctor would have heeded the proposed letter; and therefore,
would not have used the product (or whatever other statement is necessary
to show that plaintiff’s injuries would have been prevented). Obtaining this
testimony poses risks, of course, for the plaintiff. While, in our experience,
most doctors who are asked in deposition are too embarrassed to say
anything other than, “of course, I review all Dear Doctor letters that cross
my desk” (even though that’s likely not always true),95 most plaintiffs are
afraid to draft some concrete language for the Dear Doctor letter, lest that
92. Id. at 576.