Date: Tue, 14 Aug 2007 01:21

From: David Cheifetz

Subject: Judges, Buses and A Butterfly in Tokyo

Jonathan

You wrote:

But in Heward the causation question is whether, if a counterfactual adequate warning had been given, the patients would have taken the drug. (I am intentionally not referring to Health Canada, or any other intermediary, here.)

Well, yes, if you eliminate all of the intermediaries you've created an ordinary failure to warn case. But you can't do that. (Or, perhaps, you'll explain why you say you can alter the essential Heward facts. That the Ont CA or SCC might do something like that it if need be may be true, but not valid here.)

If I eliminate all of the intermediaries to your presence, here, we could blame the primeval slime - or, at least the person who last hired you for your current job. We won't, though.

That's the point. This isn't an over-the-counter laxative were dealing with. They don't get the drug except through their physician. Heward isn't a case where the users could buy the product directly. It's a prescription drug which they received through their doctor.

We can turn anything into but-for (or, more accurately, Wright's NESS, or Stapleton's targeted but-for) by tossing parts of the tapestry out the window. That may be normatively valid. It ain't science though.

David

----- Original Message ----
From: Jonathan D. Tweedale
Sent: Monday, August 13, 2007 7:50:31 PM
Subject: RE: Judges, Buses and A Butterfly in Tokyo

David,

Your argument from Walker Estate is convincing. I will reflect further on the significance of that (problematic) case.

I would, however, take issue with your argument from Hollis v. Dow Corning.

Hollis stands for the principle that an inadequate warning will be deemed to be causative of an injury even if a counterfactual adequate warning would not have been passed along to the patient by an intermediary (such that, strictly speaking, the inadequate warning is not the “but-for” cause of the injury). But in Heward the causation question is whether, if a counterfactual adequate warning had been given, the patients would have taken the drug. (I am intentionally not referring to Health Canada, or any other intermediary, here.)

The causation issue in Heward is analogous to the issue in Hollis as to whether the patient would have consented to the operation had she been properly warned of the risk (the “first” causation question from Hollis). This “first” causation question in Hollis was treated as a “but-for” causation question. Had the plaintiff not been able to show that, as a matter of fact, she would not have consented to the operation had she been properly warned of the risk, then the Court would never have gotten to the “second” causation question – namely, the question whether it is open to the defendant to argue that its own inadequate warning made no causal difference to what the doctor had told the patient.

My assumption (A1) – that particular class members would not have agreed to take Zyprexa if properly warned of the risks associated with the drug – is analogous to the “first” causation question in Hollis, not the “second”. (I agree with you, however, that if (A1) were an instance of the “second” causation question in Hollis, then the only issue would be the adequacy of the warning.)

On the basis of the preceding, I conclude that if we are applying Hollis, the proper test for causation in Heward is but-for, not material contribution (assuming that we are getting to proof of causation via (A1)).

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