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Eleventh Circuit rules that Florida’s learned intermediary doctrine does not contain a “financial bias” exception covering situations where the doctor and the manufacturer have a financial relationship

On April 29, 2021, in Salinero v. Johnson & Johnson, et al., No. 20-10900, the Eleventh Circuit Court of Appeals affirmed a summary judgment for the defendant surgical mesh manufacturer in a product liability lawsuit filed by a plaintiff who had underwent implantation of the mass as part of a surgery to address pelvic organ prolapse and subsequently suffered health issues which she attributed to the mesh. She alleged in her complaint that the defendant manufacturer was liable for its failure to warn of the adverse health consequences of the Artisyn Y-Mesh implant. The U.S. district court for the Southern District of Florida granted summary judgment for the defendant based on Florida’s learned intermediary doctrine, which imposes on medical device manufacturers a duty to adequately warn physicians, rather than patients, of the risks their products pose. On appeal, the plaintiff claimed that the doctrine was unavailable to the defendant because the surgeon had a long-standing financial relationship with the defendant and thus it was not reasonable to expect him to adequately communicate the risks surrounding an Artisyn Y-Mesh implant. The plaintiff asked the Eleventh Circuit to create a “financial bias” exception to the learned intermediary doctrine, relying on cases outside Florida. See In re:DePuyOrthopaedics, Inc., No. 3:11-MD-2244-K, 2016 WL 6268090, *6 (N.D. Tex. Jan. 5, 2016), In re Vioxx Prods. Liab. Litig., MDL No. 1657, 2015 WL 1909859, at *9 (E.D. La. Apr. 21, 2015), and Murthy v. Abbott Lab’ys, 847 F. Supp. 2d 958, 964, 971–73 (S.D. Tex. 2012). The Eleventh Circuit refused, noting that no such exception has ever been recognized in Florida courts, and it is bound by Florida as a federal court exercising diversity jurisdiction.