Texas PJC Malpractice 2022

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.5

(Tex. 1972). This duty extends beyond the purchaser to the ultimate user. See Coleman v. Cintas Sales Corp. , 40 S.W.3d 544, 549 (Tex. App.—San Antonio, 2001, pet. denied). The duty is limited to dangers that are either known or by the application of reasonably developed human skill and foresight should have been known by the defendant when the product was marketed and to uses that are either intended or rea sonably foreseeable. See, e.g., Bristol-Myers Co. , 561 S.W.2d at 804; Simms v. South west Texas Methodist Hospital , 535 S.W.2d 192, 198 (Tex. App.—San Antonio 1976, writ ref’d n.r.e.); Ethicon, Inc. v. Parten , 520 S.W.2d 527, 533 (Tex. App.—Houston [14th Dist.] 1975, no writ). If the risks and dangers are commonly known, warning generally is not required. See Sauder Custom Fabrication, Inc. v. Boyd , 967 S.W.2d 349, 350–51 (Tex. 1998) (per curiam); Caterpillar, Inc. v. Shears , 911 S.W.2d 379, 382 (Tex. 1995). Caveat—“unavoidably unsafe” products. The Committee expresses no opinion on the applicability of the producing-cause standard to “unavoidably unsafe” products involving a foreseeability element. Courts have recognized that certain products, though manufactured as designed and intended, are “unavoidably unsafe.” Manufac turers of such products—for example, prescription drugs—are generally not liable for resulting harm absent proof that the manufacturer knew or reasonably should have known of the risk of harm at the time of marketing. Restatement (Second) of Torts § 402A cmts. j, k; Restatement (Third) of Torts ch. 1 topic 2—Liability Rules Applica ble to Special Products, §6 (“reasonable instructions or warnings regarding foresee able risks of harm”); cf. Crocker v. Winthrop Laboratories , 514 S.W.2d 429, 433 (Tex. 1974) (drug manufacturer is liable for misrepresentation, regardless of state of medical knowledge, when it “positively and specifically represents its product to be free and safe from all dangers ... and when the treating physician relies upon that representa tion”); see also Alm v. Aluminum Co. of America , 717 S.W.2d 588, 596 (Tex. 1986) (adequate warning to physician relieves manufacturer of duty to warn consumer patient of hazards associated with product). Liability of a nonmanufacturing product seller. For a discussion of the liability Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated only on “an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code §71.002(b); see also Kramer v. Lewisville Memorial Hospi tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question. Definition of “adequate.” A definition of the term “adequate” as applied to warnings or instructions for safe use is appropriate. Regarding that term, see Shop Rite Foods, Inc. v. Upjohn Co. , 619 S.W.2d 574 (Tex. App.—Amarillo 1981, writ ref’d of a nonmanufacturing product seller, see PJC 70.5. Use of “injury” or “occurrence.” See PJC 71.1.

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