When a case involves electroconvulsive therapy (ECT), one might think it originated out of the Twilight Zone. Despite the misrepresentation of such therapies in popular media, modern ECT serves as a valuable option for patients with certain severe mental health conditions who have tried other therapies without success. Although ECT is far safer today than it was when the stigma attached to it was formed, it still carries risks such as confusion, memory loss, and some physical side effects. One need not enter another dimension to envision why a plaintiff might claim damages arising from those risks. Much like Rod Serling’s anthology, the Eleventh Circuit recently closed the door on one such episode.

In Thelen v. Somatics, LLC, — F.4th —, 2025 WL 2749888 (11th Cir.), the plaintiff suffered from depression and mental health issues so severe that he attempted to take his life numerous times in numerous ways. During a two-year span, he received 95 ECT treatments to address his conditions. He was later diagnosed with a neurocognitive disorder that caused severe memory loss.

The plaintiff sued the manufacturer of the device used to administer the ECT treatments, asserting the typical slew of product liability claims premised on the defendant’s alleged failure to warn. The district court dismissed some claims, merged others, and granted summary judgment on some. By the time the case reached trial, all that survived were claims for negligent and strict liability failure to warn. The district court, again, merged those claims into one for the jury’s benefit. While the jury found the ECT devices lacked adequate warning, they also concluded that the inadequate warnings did not proximately cause the plaintiff’s injuries.

The plaintiff appealed, citing six alleged errors by the district court and bringing to mind the Sixth Circuit’s reminder that “[w]hen a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortg. Co. v. Chicago Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012). The Eleventh Circuit affirmed the district court’s decision on each of the six issues.

• Design Defect Claim

  The plaintiff first argued that the district court erred in granting summary judgment for Defendant on the design defect claim. Nebraska supplied the substantive law and, for a claim of design defect, requires a plaintiff to show the product is dangerous “beyond that which could be contemplated by the ordinary user or consumer.” The plaintiff’s argument was that the defendant failed to warn consumers that the product might cause “brain damage,” and that it therefore fell short of his own subjective expectations and those of his physician.  But the warnings expressly noted that ECT could cause “short term memory loss;” “permanent memory loss;” “prolonged seizures;” “heart abnormalities;” and even “mortality.” The plaintiff had to come forward with “objective evidence of ‘ordinary knowledge common to the community’” about ECT’s risks. Because the plaintiff’s evidence at most supported a subjective view of the warnings, his design defect claim failed.

• Merger of Strict Liability and Negligence Claims

  The district court merged the plaintiff’s strict liability and negligence claims because both were based on an alleged failure to warn. Despite the plaintiff’s challenge to the practice, the Eleventh Circuit panel noted Nebraska’s recognition of “merger of doctrines” and a “single theory approach.” Because the claims arose from the same alleged warning defect, either legal theory would require proof of the same “failure to warn” to succeed.

• Jury Instructions and Closing Argument

  The plaintiff next challenged the district court’s jury instruction on proximate cause, which stated that he “must prove his prescribing physician would have altered his conduct had adequate instructions been provided.” Id. The plaintiff contended that the learned intermediary doctrine applied only to duty, whereas this instruction applied it to causation.  However, he cited no authority to support that argument, and cases interpreting Nebraska law supported the opposite conclusion.

  The plaintiff’s challenge based on opposing counsel’s remarks in closing argument fared no better. Defense counsel suggested that, to succeed, the plaintiff must prove his doctor “would not have prescribed ECT” if the warning had used the words “brain damage” and not just “permanent memory loss.” But the closing argument “largely mirrored” the jury instruction, and in any event the plaintiff had waived the objection.

• Exclusion of Evidence

  Lastly, the plaintiff argued that the district court erred by excluding (1) a patient consent video featuring the plaintiff’s treating physician and (2) the plaintiff’s treating neuropsychologist’s opinion on medical causation. The district court had excluded the patient consent video under Rule 403 out of concern that it would confuse the jury over application of the learned intermediary rule, and the Eleventh Circuit declined to find an abuse of discretion. As for the neuropsychologist, the expert was not a medical doctor and admitted he was unqualified to opine on medical causation, as ECT was outside his scope of expertise. Moreover, his opinions were unreliable because he failed to rule out alternative causes of the plaintiff’s memory loss. Because medical causation required expert opinion, and because the neuropsychologist’s opinion did not pass muster under Rule 702, the Eleventh Circuit affirmed its exclusion.

The plaintiff’s story is a sad one, to be sure. However, when a case involving a plaintiff who experienced a specific labeled adverse event makes it to a jury simply because the label did not also warn of a broader category of adverse event, we feel like we have entered the Twilight Zone. Fortunately, the Eleventh Circuit waded through the smorgasbord of issues brought on appeal and affirmed the defense win.