Not every decision we bring you is a quadruple scoop chocolate peanut butter sundae dripping in hot fudge sitting atop an extra fudgy brownie (OK, maybe we shouldn’t be blogging with the Food Network’s “The Best Thing I Ever Ate-Sweets” on in the background). But sometimes, just a little taste of vanilla satisfies the sweet tooth – and we are always satisfied when a prescription drug case is dismissed based on the learned intermediary doctrine. Last week, two courts (of which we are aware) rendered decisions regarding the learned intermediary doctrine and while both got the law right, because of the different procedural posture of the two cases, one was a total victory (a scoop of vanilla with whip cream and a cherry on top) and the other – well, let’s just say there is still work to be done (no cherry yet).

First, the Northern District of Ohio, applying Louisiana law, granted defendant’s motion for summary judgment on plaintiff’s failure to warn claim in James v. Ortho-McNeil Pharmaceutical, Inc., 2011 U.S. Dist. LEXIS 91030 (N.D. Ohio August 12, 2011). In this case, discovery was complete and the defendant had scored some fantastic deposition testimony from the prescribing physician...