The Ninth Circuit today asked for help on a medical products liability issue in Himes v. Somatics. The appeals court panel would like the Supreme Court to answer these questions of California law:

“Under California law, in a claim against a
manufacturer of a medical product for a
failure to warn of a risk, is the plaintiff
required to show that a stronger risk warning
would have altered the physician’s decision
to prescribe the product? Or may the plaintiff
establish causation by showing that the
physician would have communicated the
stronger risk warnings to the plaintiff, either
in their patient consent disclosures or
otherwise, and a prudent person in the
patient’s position would have declined the
treatment after receiving the stronger risk

The plaintiffs claim that the defendant manufacturer’s “misbranding and failure to warn about certain risks of its electroconvulsive therapy (‘ECT’) device caused” injuries. The district court entered a defense summary judgment on causation grounds, finding a lack of evidence that a stronger warning would have affected the prescription decision of plaintiffs’ physicians. The Ninth Circuit says it agrees with the district court’s conclusion a stronger warning wouldn’t have affected a prescription decision, but it concluded plaintiffs’ claims survive summary judgment if they need to show only that a stronger warning would have affected their own decisions about treatment.

Video of last month’s Ninth Circuit oral argument in the case is here.

This is the fourth Ninth Circuit request for Supreme Court assistance in less than four months. Before that, more than eight months had passed without an ask.

The Supreme Court should let the Ninth Circuit know by early June — give or take — whether it will answer the questions.  It probably will.  The Supreme Court has granted 12 of the last 13 Ninth Circuit requests for help in resolving questions of California law, dating back to July 2018.  The lone denial during that time was in October 2019. Two other requests are still pending.

[Update: the Supreme Court has docketed the case.]


Rule 8.548

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions