Adrienne Franco Busby

Adrienne Franco Busby puts science and strategy to work for companies facing product liability litigation. She is an experienced litigator in product liability, commercial, employment, class action and mass tort matters.

View the full bio for Adrienne Franco Busby at the Faegre Drinker website.

Articles by Adrienne Franco Busby:


Ninth Circuit Asks California Supreme Court to Clarify the Causation Standard Applicable When the Learned Intermediary Doctrine Applies

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How demanding is the causation standard in a California failure to warn claim when a learned intermediary testifies that he would have read and incorporated more stringent warnings if they had been available? Is the plaintiff required to show that the stronger 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 warnings to the patient and that a prudent person in the patient’s position would have declined the treatment as a result?

The Ninth Circuit isolated this undefined causation standard in Himes v. Somatics, LLC, and certified the question to the California Supreme Court. After confirming that the learned intermediary doctrine is alive and well in California and that a failure to warn claim cannot survive when the learned intermediary does not read the warnings at all, the Ninth Circuit stopped short of defining the causation standard that applies when a learned intermediary does read the warnings.

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No Damages? No Tort, Says the Supreme Court of Canada

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Consider this: What if plaintiffs could assert a cause of action for negligence without proving, or even pleading, any actual damages? And what if the remedy for this damage-free tort claim were disgorgement of profits allegedly acquired by a breach?

This may seem foreign to American tort lawyers, but for Canadian litigants this cause of action has a name, albeit a confusing one: waiver of tort. It is often pled as an independent, gain-based cause of action, and it is a source of frustration and controversy for our friends in the True North. Indeed, class certification grounded in waiver of tort forces defendants to face the prospect of disgorgement without proof that any class member actually suffered damage, even though these commonly advanced claims have never fully been tried in Canada. Canadian scholars have suggested that this uncertainty has the potential to drive settlement negotiations unfairly in the class context.

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“Deposition Distancing”: Practical Considerations for Defending Remote Depositions

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Lawyers continue to work during the COVID-19 pandemic.  As we discussed in a previous post, for litigators this may involve participating in remote depositions as courts attempt to keep discovery moving. We also provided tips for lawyers taking remote depositions. With thanks to our Faegre Drinker colleagues who have ventured into this new world and shared a great deal of useful advice with the authors, here we discuss some of the practical considerations for lawyers defending remote depositions.

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“Deposition Distancing”: Practical Considerations for Taking Remote Depositions

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The COVID-19 pandemic continues to keep many lawyers, clients and witnesses at home. As we discussed in a previous post, many courts are encouraging or requiring remote depositions, typically by videoconference, to keep discovery moving. Lawyers taking these depositions will have to do all of the things they usually do and more to deal with the challenges of a deposition environment unfamiliar to many of us.

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