Texas PJC Malpractice 2022

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.7

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). Note on submitting strict liability, negligence, and implied warranty theories in same case. When the controlling issues regarding the existence of defect for strict liability, negligence, or implied warranty are functionally identical, “a trial court is not required to, and should not, confuse the jury by submitting differently worded ques tions that call for the same factual finding.” Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 665–66 (Tex. 1999) (affirming refusal in crashworthiness case to submit question on breach of implied warranty in addition to strict products liability ques tion). Because of the overlapping elements of proof, there is a risk of conflicting answers that will necessitate a new trial. See Miles , 141 S.W.3d at 315–19; Otis Spunk meyer, Inc. v. Blakely , 30 S.W.3d 678, 690 (Tex. App.—Dallas 2000, no pet.); see also Hanus v. Texas Utilities Co. , 71 S.W.3d 874, 881 (Tex. App.—Fort Worth 2002, no pet.) (“Commentators and other courts have also recognized that the duty-to-warn analyses of marketing defect and negligence claims are so similar as to be duplica tive.”).

239