liability on a drug manufacturer
ONLY IF it failed
to warn of a defect of which it either knew
or should have known.
not focus on the deficiency of the product.
on the fault of the producer failing to warn against inherent
rings of negligence.
To hold that
the manufacturer of a prescription drug is strictly liable
for a defect in its product because it was defectively
designed, as that term is defined in Barker,
OR because of a failure
to warn of its dangerous propensities even though such
dangers were neither known nor scientifically knowable at the
time of distribution;
that liability attaches only if a manufacturer fails to warn
of dangerous propensities of which it was or
should have been aware, in conformity with comment
that strict liability for design defects should apply to
prescription drugs unless the particular drug
which caused the injury is found to be "unavoidably dangerous.
product performed as safely as the ordinary
consumer would expect when used as intended
and in a reasonably foreseeable manner,
balance, the benefits of the challenged design outweighed the
risk of danger inherent in the design.
Df Arg Neither Test is applicable
agrees that the warning is meant for the physician that relates
the information to his patient about the drugs propensities.
The manufacturer CANNOT be held liable for the doctors failure
to relate the warning to the patient.
The Df says
that prescription drugs cannot be redesigned because of the
scientific constant required of the formula.
disagrees because you can remove a component of the drug that
makes it unsafe without affecting the efficacy [effectiveness]
of the drug.
The Pl could
prove there were other less harmful drugs that prevent
miscarriage. The benefit of such alternative drugs could be
weighed against the advantages of DES in making the risk/benefit
analysis of Barker.
a drug has dangerous defects, does not necessarily make it
determination is if the public interest would be served by the
imposition of such liability.
fundamental reasons underlying the imposition of strict
liability are to
manufacturers from marketing products that are unsafe, and
spread the cost of injury from the plaintiff to the consuming
public, which will pay a higher price for the product to
reflect the increased expense of insurance to the manufacturer
resulting from its greater exposure to liability.
between Prescription Drugs and other products
like machinery or perfume make life easier and more enjoyable.
like prescription drugs may be necessary to alleviate pain or
sustain life and their side affects to some users might be
the development and marketing of beneficial new drugs,
even though some risks might accompany their introduction.
manufacturers were subject to strict
liability, they might be
reluctant to undertake research
programs to develop beneficial drugs out of fear of
large adverse monetary judgments.
Rising Costs Prohibiting New Drugs from reaching the public
almost equaling the entire income of the sale.
inoculation would subject it to enormous liability.
obtain adequate liability insurance.
to hold that a drug manufacturers liability for injuries cause
by the defective design of prescript drugs should be measure by
the standard set forth in Barker.
Holding Failure to Warn (Negligence)
a drug manufacturer should be held strictly liability for
failure to warn of risks inherent in a drug.