Fifth Circuit affirms dismissal for lack of cause in fact in suicide for lack of warnings case

Coincidences sometimes can be uncanny. Last week, as we prepared to discuss Palsgraf v Long Island Railroad, Courtoons published two cartoons on the case in one week. Yesterday in class we spent a good deal of time discussing cases involving the risk of suicide and today the Drug & Device Law Blog is reporting that the Court of Appeals for the 5th Circuit has affirmed the lower court's ruling in a case in which the plaintiffs' decedent committed suicide allegedly induced by the off-label use of prescription drug Zyprexa. Zyprexa is an antipsychotic drug produced by defendant Lilly and approved by the Food and Drug Administration for the treatment of schizophrenia and bipolar disorder. In this case, it was prescribed to treat severe migrane headaches. One interesting aspect of the decision is the way in which the court approaches the issue of cause in fact. The court held that, in order to prove cause in fact, the plaintiff had to show that the doctor would not have prescribed the drug if it had contained an adequate warning. The court then affirmed summary judgment for the defendant because the plaintiff failed to present evidence to suggest that the doctor was unaware of the risks engendered by Zyprexa’s use at the time he prescribed the drug or that an alternative warning would have changed the doctor's decision to prescribe Zyprexa. The opinion has been officially designated as "not for publication" and thus does not have precedential value, but it is available here.