The Supreme Court today granted the Ninth Circuit’s request to answer these questions in Himes v. Somatics, LLC:

“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 warning?”

The case involves a claim that the defendant manufacturer’s “misbranding and failure to warn about certain risks of its electroconvulsive therapy (‘ECT’) device caused” injuries.

The Supreme Court has now granted 15 of the last 16 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.

One other request is pending. (See here.)


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