Texas PJC Malpractice 2022

PJC 71.5

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

n.r.e.), and Bituminous Casualty Corp. v. Black & Decker Manufacturing Corp. , 518 S.W.2d 868 (Tex. App.—Dallas 1974, writ ref’d n.r.e.). Implicit in the duty to warn and to instruct for proper and safe use is the obligation to keep abreast of scientific knowledge and advances and to provide an adequate warning of dangers that were known or should have been known, based on the latest knowledge and available infor mation. See Humble Sand & Gravel, Inc. v. Gomez , 146 S.W.3d 170, 179 (Tex. 2004); Bristol-Myers Co. , 561 S.W.2d at 804. Definition of “producing cause.” The appropriate definition of “producing cause” should accompany PJC 71.5. See PJC 70.1, including the caveat about unavoidably unsafe products. Rebuttable presumption. When a defendant fails to give adequate warnings or instructions, a rebuttable presumption arises that the user would have read and heeded such warnings or instructions. Magro v. Ragsdale Bros. , 721 S.W.2d 832, 834 (Tex. 1986). See Dresser Industries v. Lee , 880 S.W.2d 750 (Tex. 1993), for the type of evi dence that can overcome the presumption where no warning is given. In General Motors Corp. v. Saenz , 873 S.W.2d 353 (Tex. 1993), the court held that the presump tion operates differently in an inadequate-warning case than it does in a failure-to warn case. In Saenz , the court held that when such warnings or instructions are suffi ciently conspicuous, no such presumption arises in the absence of evidence that the plaintiff read the warnings or instructions, even though such warnings or instructions may have been legally inadequate. Rebuttable presumptions for pharmaceutical products, products complying with government standards, and products receiving premarket licensing or approval. The Texas Civil Practice and Remedies Code provides, in certain circum stances, a rebuttable presumption of nonliability for manufacturers and sellers of phar maceutical products, products complying with government standards, and products receiving premarket licensing or approval. See Tex. Civ. Prac. & Rem. Code §§82.007–.008. These statutes set forth what the plaintiff must establish to rebut the presumption. See Tex. Civ. Prac. & Rem. Code §§82.007(b), 82.008(b)–(c). But see Lofton v. McNeil Consumer & Specialty Pharmaceuticals , 672 F.3d 372, 380–81 (5th Cir. 2012) (holding that the plaintiffs’ attempt to rebut the presumption based on sec tion 82.007(b)(1) was preempted by federal law, but declining to decide whether sec tion 82.007(b)(1) is severable from section 82.007(a)). For a discussion of rebuttable presumptions generally, see Combined American Insurance Co. v. Blanton , 353 S.W.2d 847, 849 (Tex. 1962); see also Wright v. Ford Motor Co. , 508 F.3d 263, 270– 74 (5th Cir. 2007); Texas A&M University v. Chambers , 31 S.W.3d 780, 783–85 (Tex. App.—Austin 2000, pet. denied). Learned intermediary. Prescription drugs and certain prescribed medical appli ances constitute an exception to the duty to warn the ultimate user. See Air Shields, Inc. v. Spears , 590 S.W.2d 574, 582 (Tex. App.—Waco 1979, writ ref’d n.r.e.). Gener ally, a defendant satisfies the duty to adequately warn of dangers and instruct for safe

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