Date: Thu, 9 Aug 2007 00:49

From: Jonathan Tweedale

Subject: Judges, Buses and A Butterfly in Tokyo

David,

Regarding your "second question" (quoted below) -- I did not understand (A1) to involve an intermediary giving the warning. The question in Heward is whether the alleged wrongful conduct (i.e. the failure to warn) caused the defendant's gain. This question would be answered in respect of a particular plaintiff P if it is determined whether P would have agreed to take Zyprexa if properly warned -- by the defendant -- of the associated risks (viz. if there had been no wrongful conduct by the defendant). I'm not sure how the learned intermediary rule (or the '"learned intermediary" rule', as the Court in Hollis repeatedly called it) would have arisen on these facts.

Thanks for the link to your paper on Resurfice.

I look forward to your explanation of why the Resurfice material contribution test -- in spite of its indeterminate state (which is another issue entirely) -- is the applicable test in Heward.

Regards,
Jonathan Tweedale

A second question, about (A1) is about who's giving the warning. I assume you mean an intermediary. How do we handle the situation where the intermediary wouldn't have given a proper warning, even if Eli Lilly's warning was adequate. (Hint - go look at Hollis. Does that complication create common issue problems?)

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