Arnold & Porter Obtains Ninth Circuit Win for Bayer in Low Dose Aspirin Case
On June 12, 2018, the Ninth Circuit affirmed the district court's summary judgment in favor of Arnold & Porter client, Bayer, in a case involving Bayer's flagship product, low dose aspirin. The scientific evidence established plaintiff took an overdose, but in her lawsuit sought to blame Bayer for the resulting injuries. Despite the evidence confirming overdose, during discovery, plaintiff asserted that she actually took less than the recommended maximum dose of the low dose aspirin. She also claimed that she found assurance in the packaging's reference to 'baby' aspirin.
Bayer moved for summary judgment on the grounds that: (1) Bayer had no duty to warn of a risk of suffering aspirin toxicity from the dose of aspirin plaintiff claimed to have taken, because there was no evidence that anyone had been injured by such a low dose in the past; (2) plaintiff failed to prove that the lack of such warning had caused her injury; and (3) in the alternative, plaintiff's overdose, established by the medical evidence, was product misuse contrary to the product instructions, which constituted a superseding cause. Her lawyers were unable to come up with valid expert testimony that taking below the recommended dose could cause the sort of harm plaintiff suffered. As a result, her lawyers switched gears at summary judgment and tried to argue that a disputed issue of material fact existed concerning how much aspirin she actually took.
Judge Real granted summary judgment in favor of Bayer, reasoning that "plaintiff may not survive a motion for summary judgment simply by contradicting her previously made sworn testimony in an effort to create the appearance of disputes as to material facts" and that she could not "prove her injuries came from having an adverse reaction to a below recommended amount of aspirin, rather than a willing overdose, which the bottle already directed against." The Ninth Circuit echoed Judge Real's reasoning in its opinion.