TORTS - REMEDIES Copyright July 2002 State Bar of California

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1 TORTS - REMEDIES Copyright July 2002 State Bar of California Manufacturer (Mfr.) advertised prescription allergy pills produced by it as the modern, safe means of controlling allergy symptoms. Although Mfr. knew there was a remote risk of permanent loss of eyesight associated with use of the pills, Mfr. did not issue any warnings. Sally saw the advertisement and asked her doctor (Doc) to prescribe the pills for her, which he did. As a result of taking the pills, Sally suffered a substantial loss of eyesight, and a potential for a complete loss of eyesight. Sally had not been warned of these risks, and would not have taken the pills if she had been so warned. Doc says he knew of the risk of eyesight loss from taking the pills but prescribed them anyway because this pill is the best-known method of controlling allergy symptoms. Bud, Sally s brother, informed Sally that he would donate the cornea of one of his eyes to her. Bud had excellent eyesight and was a compatible donor for Sally. This donation probably would have restored excellent eyesight to one of Sally s eyes with minimal risk to her. The expenses associated with the donation and transplantation would have been paid by Sally s medical insurance company. Sally, however, was fearful of undergoing surgery and refused to have it done. Thereafter, Sally completely lost eyesight in both of her eyes. Sally filed a products liability suit against Mfr. seeking to recover damages for loss of her eyesight. She also filed a suit for damages against Doc for negligence in prescribing the pills. What must Sally prove to make a prima facie case in each suit, what defenses might Mfr. and Doc each raise, and what is the likely outcome of each suit? Discuss.

2 TORTS - REMEDIES Copyright July Scott F. Pearce, Esq. Outline I. Sally v. Manufacturer - Products Liability Theories A. Strict Products Liability 1. Defect: failure to warn about the risk of sight loss. 2. Causation 3. Damages 4. Conclusion: Manufacturer is strictly liable. B. Negligence 1. Duty 2. Breach 3. Causation - Actual and Proximate 4. Damages 5. Defenses 6. Conclusion: Manufacturer is liable for negligence. C. Warranty D. Sally s Duty to Mitigate E. Conclusion: Sally prevails. II. Sally v. Doc for Negligence A. Duty B. Breach C. Causation - Actual and Proximate D. Damages E. Defenses F. Conclusion: Sally prevails.

3 TORTS - REMEDIES Copyright July Scott F. Pearce, Esq. Answer I. Sally v. Manufacturer - Products Liability Theories Sally completely lost eyesight in both eyes as a result of her taking allergy pills produced by Manufacturer. She seeks damages from Manufacturer based on products liability theories of liability. A. Strict Products Liability To prevail on a strict products liability theory, Sally will have to prove that Manufacturer placed into the stream of commerce a product that was defectively designed or manufactured, and which caused harm to her. 1. Defect Manufacturer knew there was a remote risk of permanent loss of eyesight associated with the use of its allergy pills, but did not issue any warnings. Furthermore, Manufacturer advertised the pills as being modern and safe. Manufacturer s failure adequately to warn users of its allergy medicine of the risk to their eyesight renders the product defective. 2. Causation Sally asked her doctor, Doc, to prescribe Manufacturer s allergy pills after she saw the advertisement. Sally was unaware of the possible risk to her eyesight and would not have taken the medicine had she known. It is true that Doc knew of about the risks associated with the allergy pills and failed to warn Sally. This act of professional negligence is discussed below in section II. For the purposes of Sally s strict liability action against Manufacturer, Doc s failure to warn does not break the chain of causation. 3. Damages Sally is blind because she took Manufacturer s product. She has suffered huge damages. 4. Conclusion: Manufacturer is strictly liable.

4 Manufacturer put a defective product into the stream of commerce which blinded Sally. Manufacturer will be held strictly liable for Sally s damages. B. Negligence Manufacturer s failure to warn also will be considered an actionable act of negligence. 1. Duty Manufacturer had a duty to exercise reasonable care in producing, distributing and publicizing its allergy medicine. 2. Breach Manufacturer failed to warn users of the possible threat to their vision. This failure is a breach of Manufacturer s reasonable care standard. 3. Causation - Actual and Proximate But for Manufacturer s careless failure to warn, Sally would not have lost her eyesight. Although Doc s act of negligence occurred after Manufacturer s act, it does not break the chain of causation. Sally thus will establish proximate cause as well. 4. Damages Sally s blindness constitutes serious damages. 5. Defenses Manufacturer cannot show that Sally did anything to contribute to her injuries, nor did she assume a known risk. It has no valid defenses. 6. Conclusion Manufacturer will be liable to Sally for negligence. C. Warranty All products come to market with implied warranties of merchantability and fitness for use. Furthermore, this product was expressly advertised as the modern, safe means of controlling allergy symptoms. Sally took the allergy pills and was blinded as a result. The pills were not merchantable because they did not contain a necessary warning. Furthermore, the product was not fit for its intended use.

5 Manufacturer will be liable to Sally for breach of warranty. D. Sally s Duty to Mitigate / Avoidable Consequences Sally, like all plaintiffs, has a duty to mitigate her losses. Bud, Sally s brother, offered to donate the cornea of one of his eyes to her. This donation probably would have restored excellent eyesight to one of her eyes with minimal risk to her, and the costs were covered by Sally s insurance. Sally refused the surgery because she was afraid of the procedure, even though it probably would have drastically reduced her damages. Given her recent bad experiences with the medical profession, this is understandable. Plus, Sally probably was reluctant to allow her brother to give up the eyesight in one eye merely for her sake. It is possible that a court would reduce Sally s damages award because of her refusal to undergo the procedure, however this seems to be an unreasonably harsh result. E. Conclusion Sally will prevail against Manufacturer in all her products liability theories. Her award of damages will not be reduced because she refused to undergo the surgery. II. Sally v. Doc for Negligence Sally also filed suit for damages against Doc for negligence in prescribing the pills without warning her about the risk to her vision. She will show Doc breached his professional duty to her, causing her damages. A. Duty Doc had a duty to conduct his practice with reasonable care, consistent with similarly situated medical doctors. B. Breach Doc prescribed Manufacturer s allergy pills to Sally. He says he prescribed the pills despite the risk to eyesight because they are the best known method of controlling allergy symptoms. Doc failed to warn Sally of the risk to her vision, despite the fact that he knew of it. Had he done so, Sally would not have taken the pills. Doc breached his duty of reasonably professional care. C. Causation But for Doc s failure to warn, Sally would not have been harmed. Manufacturer s failure to place a warning label on the package does not break the chain of causation. Thus, Sally can establish both

6 actual and proximate cause. D. Damages Sally s blindness is serious harm. As discussed above, her refusal to have surgery will not be deemed a failure to mitigate damages. E. Defenses Sally in no way contributed to her own harm or assumed a known risk. Doc has no viable defenses. F. Conclusion Sally will win compensatory damages from Doc for negligence.