Texas PJC Malpractice 2022

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.6

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. If plaintiff is not purchaser. If the plaintiff is not the purchaser, instruction 4 above should be modified to establish whether the purchaser relied on the representa tion. A finding that either the purchaser relied on the representation in purchasing the product or the plaintiff-user relied on the representation in using the product would support recovery. Reasonable implication of express representation. If the reasonable implica tion of an express representation is in issue, instruction 1 should be modified as fol lows: 1. ABC Company ’s representation that the Panther automobile had the most stable suspension system on the market reasonably implied to the ordinary user that the automobile could safely turn a corner at 35 miles per hour ; and Learned intermediary. If the product falls within the learned intermediary doc trine, so that the defendant’s duty is only to represent the product correctly to the phy sician, or if the materiality of the representation has been established as a matter of law, instruction 1 should be modified as follows: 1. ABC Company represented to the medical profession that the drug “Good for All Seasons” would not cause physical depen dence ; and Instruction 4 should also be modified: 4. Dr. Jones relied on such representation in prescribing “Good for All Seasons” for use by Paul Payne .

235