Summary Judgement Archives - Faegre Drinker on Products

Subject: Summary Judgement

Nothing Shocking Here – Eleventh Circuit Affirms Defense Win in Electroconvulsive Therapy Case

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.

Defining the Limits of Lay Testimony in Complicated Products Cases

“So when is a question too complicated for the jury?” That is the question the Third Circuit sought to answer recently in Slatowski v. Sig Sauer, Inc., ___ F. 4th ___, 2025 WL 2178533 (3d Cir. 2025), reversing a district court’s grant of summary judgment despite affirming its exclusion of the plaintiff’s causation experts. Ironically, the Third Circuit’s analysis of when an expert opinion is required is itself so nuanced that it may require expert interpretation. Upon close inspection, the Slatowski panel’s holding is not nearly as broad as the headings might suggest.

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Fifth Circuit Clouds Threshold Dose Analysis in Ruffin v. BP

Plaintiffs in toxic tort cases must prove both general and specific causation, generally through the testimony of experts. Experts must establish that a specific chemical exposure can (and did) cause the specific injury at issue. In order to make that showing, the plaintiff’s exposure must at least have exceeded the minimum harmful level of the chemical — the “threshold dose.” As the Eleventh Circuit made clear last year in its handling of In re Deepwater Horizon BELO litigation (which we discussed here), threshold dose is a concept that straddles general and specific causation. A more recent BELO case, Ruffin v. BP Exploration & Production, Inc., — F.4th —, 2025 WL 1367185 (5th Cir. May 12, 2025), shows how isolating an expert’s general causation opinion from its implications on specific causation can cloud the analysis.

In Ruffin, the plaintiff worked for five months as a clean-up worker following the Deepwater Horizon oil spill. He was diagnosed with prostate cancer five years later and sued the defendant, claiming he was exposed to chemicals that caused his cancer. He described two instances of exposure: one when oil splashed onto his face while travelling by boat and another when he fell in the water. The plaintiff had a known genetic risk for prostate cancer, but his expert claimed the oil exposures were a “second and necessary hit to initiate his prostate cancer.” The defendant moved to exclude the plaintiff’s causation expert, a genetic and molecular epidemiologist, under Federal Rule of Evidence 702. The district court had excluded both the expert’s general and specific causation opinions as unreliable, largely for failure to specify a threshold dose, and then granted summary judgment for want of admissible expert evidence.

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A Change Is Gonna Come — Amendments to California Summary Judgment and Summary Adjudication Procedures Take Effect January 1, 2025

Those who litigate in California state courts, take note: Changes are coming to the state’s summary judgment statute for the first time in 20 years. Assembly Bill 2049 (AB 2049), signed into law this summer, introduces logistical changes and clarifications to the summary judgment process that attorneys should be aware of before the law takes effect on January 1, 2025.

First, AB 2049 will change the notice period — and thus the timing — of summary judgment and summary adjudication motions. Code of Civil Procedure section 437c prescribes the timeline for summary judgment and summary adjudication motions. Under the longstanding statute: notice of a summary judgment or summary adjudication motion and supporting papers needed to be served at least 75 days before the hearing, oppositions were due at least 14 days before the hearing, and replies at least five days before the hearing.

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Upcoming Changes to Florida’s Civil Procedure Rules: What Litigators and their Clients Need to Know

Last week, the Florida Supreme Court released two opinions [here and here] announcing changes to its rules of civil procedure in an attempt “to promote the fair and timely resolution of civil cases.” The amendments are broad and apply to many aspects of case management, scheduling, and discovery. Thus, Florida practitioners will want to familiarize themselves with the new variants before they go into effect on January 1, 2025. The following discussion highlights a subset of the changes that appear most likely to have an impact throughout a case’s lifetime.

Litigators will feel the impact right from the jump. While the current rules permit the courts more leeway when scheduling deadlines, the newly re-written Rule 1.200 will give courts 120 days to assign each case to one of three case management tracks—complex, general, or streamlined. The court may customize the process according to its needs, but the judge must set an actual or projected trial period according to the specified case management track. These buffed requirements will provide litigants with clearer expectations in their case’s timeline, and other changes work to ensure those dates—including trial—are delayed as little as possible. For example, under the modified Rule 1.200, attorneys must follow specific steps to modify case management deadlines, otherwise deadlines “must be strictly enforced unless changed by court order.” Moreover, one noteworthy change to Rule 1.460 provides that “motions to continue trial are disfavored and should be rarely granted and then only upon good cause shown.” [No. SC2023-0962 at 7–8.]

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A KIND Result After Insufficient and Biased Consumer Perception Evidence

Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable consumer would expect may lead to its exclusion. The Second Circuit, in Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir. May 2, 2024), provides an illustrative example of this, affirming the Southern District of New York’s exclusion of plaintiffs’ experts and grant of summary judgment to a snack foods manufacturer in a false advertising class action.

In Bustamante, Plaintiffs alleged they were deceived by the packaging of KIND snack bars as “All Natural” despite the inclusion of certain “non-natural” ingredients, and their lawsuit asserted warranty, unjust enrichment, negligent misrepresentation, and state consumer protection statute claims. Although there were differing elements to Plaintiffs’ various claims, they were narrowed for the purposes of summary judgment to deception, materiality, and injury, with only the element of deception at issue on appeal.

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