Private Law Theory

ABSTRACT
It is hard to win a tort suit against a pharmaceutical company. The theory that a drug or medical device has been incorrectly designed is often foreclosed under existing law. A plaintiff pursuing a tort suit based on a warning theory might have her claim preempted by federal law. Even if a plaintiff can avoid preemption, she still might never reach a jury on her failure-to-warn claim.

It has become commonplace for judges in failure-to-warn cases to decide that a physician’s testimony requires a summary disposition for a pharmaceutical defendant before the case ever reaches the jury. This caselaw reflects widespread confusion and a fundamental misunderstanding about the causation element and its application to these cases. Most of these cases should be going to the jury for a determination regarding causation.

Meier, Luke, Failure-to-Warn Suits Against Pharmaceutical Companies: Physician Testimony, Causation, and Summary Judgment (October 15, 2025).