TEXAS TORTS
AND
REMEDIES
VOLUME 2
J. HADLEY EDGAR, JR., Deceased
Former Professor of Law Emeritus Texas Tech University, Lubbock, Texas
JAMES B. SALES
Fulbright & Jaworski, Houston, Texas
EDITORIAL CONSULTANTS
2011
• . LexisNexis·
30-3
SYNOP SIS
Synopsis
§ 30.01
Driver's Duty of Care
[1] Ordinary Care
[2] Child's Duty of Care
[3] Malice or Gross Negligence
[4] Proximate Cause
§ 30.02
Common-Law Liability
[1] In General
[2] Improper Stopping or Slowing
[3] Duty Not to Drive With Defective Equipment
[4] Effect of Intoxication
[5] Other Grounds of Liability
§ 30.03 Statutory Liability
[1]
Effect of Statute
[a] Sources of Statutes
[b) Negligence Per Se
[c) Standard of Reasonableness
[d] Effect of Compliance With Statute
[2]
Excessive or Inadequate Speed
[a] Excessive Speed
[b] Inadequate Speed
[c] Drag Racing
Unsafe Vehicle Movement
[a] Signaling
[b] Starting
[c) Turning
[d) Backing
[e) Driving on Right Side of Road
[f1 Changing Lanes and Passing
[i] Changing Lanes
[3]
[4]
(M atthew Bender & Co .. Inc.)
[ii] FollOwing Too Closely
[iii] Passing on the Left
[iv] Passing on the Right
Right-of-Way
[a] In General
[b] Entering an Intersection
[i) Controlled Intersections
[ii] Uncontrolled Intersections
[c] Tur ning
(Rel.l 6- lJ96
Pub.706)
30-4
SYNOPSIS
[d) On Approach of Emergency Vehicle
Parking or Stopping on Highway
[a] Prohibited Places
[b) Failure to Use Warning Lights or Signals
[c) Particular Situations
[i) Unattended Vehicles
[ii] On Approaching School Bus
[iii] At Railway Crossing
[6] Driver's Duties at Accident Scene
[7] Rights and Duties of Owners of Livestock
§ 30.04 Rights and Duties of Pedestrians
[1] Duties of Driver Toward Pedestrian
[a] Pedestrian's Right-of-Way in Crosswalks
[b) Pedestrian's Right-of-Way on Sidewalks
[c) Duty to Exercise Due Care
[2] Pedestrian's Duty of Care
[a] Obedience to Signals
[b) Use of Crosswalks
[c) Pedestrians on Roadways
[d) Crossing at Other Than Crosswalk
[e) Proper Lookout
[f] Minor Pedestrians
§ 30.05 Owner's Liability
[1] In General
[2] Agency
[a] Employment Relationship
[b) Family Relationship or Mission for Vehicle
Owner
[c) Joint Enterprise
[3] Negligent Entrustment
[a] Elements of Negligent Entrustment
[b) Proving Driver's Incompetence, Recklessness, or
Lack of License
[c) Proximate Causation
[d) Violation of Statute
[e) Exemplary Damages
[f] Negligent Entrustment and Respondeat Superior
[4] Entrustment of Defective Vehicle
§ 30.06 Defenses
[1] Negligence of Claimant
[5]
(Matthew Bender & Co., Inc.)
(ReI.I6-I/96
Pub.706)
30-5
MOTOR VEHICLES
§ 30.01[1]
[a]
In General
Passenger
[c]
Improper Lookout
[d] Failure to Take Evasive Action
[e]
Safety Belt
Inferential Rebuttal Defenses
[a]
In General
Unavoidable Accident
[b]
[c]
Sudden Emergency
[d]
Sole Proximate Cause
Excuse From Compliance With Statutory Duty
Former Guest Statute
Parental Immunity
[b]
[2]
[3]
[4]
[5]
§ 30.07
Practice Considerations
[1]
Investigating Officer's Accident Report
[2] Traffic Citations and Convictions
[3] Expert Telitimony ReconstruCting Accident
[4] Evidence of Liability Insurance
[5]
Habit Evidence
[6]
Res Ipsa Loquitur
§§ 30.08-30.99
§ 30.100
Reserved
PRACTICE NOTE-Examination of the Accident Reconstructionist By Barbara
R.adttofsky
,
[1]
[2]
[3]
[4]
[5]
Introduction
Direct: Deposition or Live?
Ideas for Direct Examination
Ideas for Cross-Examination
Conclusion
§ 30.01 "Driv!!r's Duty of Care
[1]
Ordinary Care
An operator of a motor vehicle has the duty to exercise ordinary care in the
operation of the vehicle so as not to endanger the safety of others who may be using
the highway.l Ordinary care is the degree of care that would have been used by a
person of ordinary prudence under the same or similar circumstances.2 Generally,
courts will find a duty to exercise care if a reasonable person would recognize a duty
and agree that it exists. If the operator should, as a reasonable person, foresee that his
or her conduct will involve · an unreasonable risk of harm to other drivers or to
pedestrians, the operator is under a duty to them to exercise the care of a reasonable
1
Metzger v. Gambill, 37 S.W.2d 1077, 1079 (Tex. Civ. App.-Dallas 1931, writ refd).
LumpldnSv. Thompson, 553 S.W.2d 949,952 (Tex. Civ. App.-Amarillo 1977, writ refd n.r.e.);
Williamson County v. Voss, 284 S.W.3d 897, 902 (Tex. App.-'-Austin 2009, no pet.).
2
(Rei. 44-412010
Pub.706)
31-3
SYNOPSIS
Synopsis
A. General Considerations
§ 31.01 Distinction Between Common Carriers and Private Carriers
[1] In General
[2] Common Carriers
[a] Common Carrier Defined
[b) Specific Modes of Transportation as Common
Carriers
[i) Railroads
[ii] Motor Bus and Motor Carrier Companies
[iii] Other Entities and Instrumentalities
[3] Private Carrier Defined
§ 31.02 Governing Law
[1] Federal
[a] Applicability of Federal Law
[b) Scope of Federal Law
[i) Interstate Commerce in General
[ii] Sea Carriers
[iii] Air Carriers
[2] State
[3] Municipal
[4] Choice of Law
§ 31.03 Jurisdiction
[1] Federal Courts
[a] Federal Question Jurisdiction
[b) Diversity Jurisdicition
[2] State Courts
§§ 31.04-31.09 Reserved
B. Carriage of Passengers and Their Baggage
§ 31.10 Carrier.Passenger Relationship
[1]
§ 31.11
Creation of Relationship
[a] Necessity of Contract
[b) Express or Implied Contract
[2] Termination of Relationship
Carrier's Duty to Receive and Carry Persons
[1] In General
[2] Person's Conduct or Condition as Grounds for Carrier's
Refusal of Service
(Pub.706)
SYNOPSIS
31-4
§ 31.12 Common Carrier's Duty of Care to Passengers
[1] In General
[2] Boarding and Alighting
[a] Boarding
[b] Alighting
[3] On Carrier's Premises
[4] In Transit
[a] Maintenance of Equipment and Vehicles
[b] Operation of Vehicles
§ 3L13 Carrier's Right and Duty to Eject Passenger
[1] In General
[2] Limitations on Manner and Place of Ejection
[3] Effect of Wrongful Ejection
§ 31.14 Carrier's Liability to Passengers
[1] Liability for Acts of Employees
[2] Liability for Acts of Other Passengers
[3] Liability for Acts of Non·Passengers
§ 31.15 Carrier's Liability to Non·Passengers
§ 31.16 Passenger's Baggage
[1] Baggage Defined
[2] Carrier's Duties and Liability Concerning Baggage
§ 31.17 Measure of Damages Recoverable From Carrier
[1] Personal Injury Damages in General
[2] Damages for Wrongful Refusal to Carry Passenger
[3] Damages for Wrongful Ejection .
[4] Damages for Loss of or Injury to Baggage
§ 31.18 Carrier's Defenses
[1] Act of God
[2] Act of Third Person
[3] Contributory Negligence
[4] Contractual Limitations on Liability
[a] Intrastate Transportation
[b] Interstate Transportation
[c] International Air Transportation
§§ 31.19-31.29 Reserved
C. Carriage of Goods
§ 31.30 Carrier.Shipper Relationship
[1] Creation of Relationship
[2] Termination of Relationship
(Pub.706)
31-5
SYNOPSIS
§ 31.31 Carrier's Statutory Duties
§ 31.32 Carrier's Duty of Care for Goods in General
§
§
t
§
§
[1] In General
[2] Carrier's Duty to Furnish Vehicles
[3] Carrier's Duty Prior to Transport
[a] Undelivered Goods
[b) Goods in Storage
[c) Selection of Route
[4] Carrier's Duty to Stop or Divert Shipment
[5] Carrier's Duty at Destination
[a] Delivery and Unloading
[b) Storage
[c) MisdeHvery
[6] Carrier's Duty of Timely Shipment
31.33 Carrier's Duty of Care for Livestock and Perishable Goods
[1] Livestock
[a] In General
[b) Duty to Feed and Water
[c) Loading and Unloading
[2] Perishables
31.34 BiOs of Lading
[1] Nature of Bm of Lading
[2] Contents of Bm of Lading
[3] IJability of Carrier Under BiOs of Lading
31.35 Notice of Claim
[1] Reqnirement of Notice of Qdm
[2] Sufliciency of Notice of Claim
31.36 Damages Recoverable From Carrier of Goods
[1] Penon Entitled to Recover
[2] Failure to Deliver Goods
[3] Damage to Goods During Transit
[4] Delay
[a] In General
[b) Damages Based on Shipper's Contract With 1hird Person
[5] Cost of Repair and Reconditioning
[6] Attorney's Fees
31.37 Defenses
[1] Common Law
[a] In General
[b) Act of God
[c) Public Enemy
[d) Ad of the Shipper
(MaIIbew Bender & Co.,
IDe.)
(Rel.26-2I01 PIIb.7(6)
31-8
SYNOPSIS
Inherent Natnre of Goods
Seizure of Goods Under Legal Process
[g] Defenses Under COGSA
[2] Statute of Limitations
[3] Contractual Limitations on Liability
[a] Intrastate Transportation
[b] Interstate and Foreign Transportation
31.38-31.49 Reserved
[e]
[fJ
U
D. Uability of Connecting Lines
§ 31.50 In General
§ 31.51 Intrastate Transportation on Connecting Lines
[I] Governing Law
[2] Connecting Carrier Defined
[3] Rights and Liabilities of Connecting Lines
[a] Statutory
[b] Common Law
§ 31.52 Interstate Transportation on Connecting Lines
[I] Governing Law
[2] Nature of Connecting Carriers Under Federal Law
[3] Rights and Liabilities of Connecting Lines
§ 31.53 International Transportation on Connecting Lines
[1] Governing Law
[2] Rights and Liabilities of ~ecting Lines
[a] International Transportation by Sea
[b] International Air Transportation
§§ 31.54-31.59 Reserved
E. Discrimination
§ 31.60 Action for Discrimination in Transportation Services Under State Law
[I] Governing Law
[2] Nature of Discrimination
[a] In General
[b] Discrimination Against Passengers
[e] Discrimination Against Shippers of Goods
[d] Discrimination Against Connecting Carriers
[3] Remedies
§ 31.61 Action for Discrimination in Transportation Services Under Federal
Law
(Mattbew IIeIIder
.t Co., Ioc.)
(ReI.2&-1All
Pub.706)
32-3
SYNOPSIS
Synopsis
PART A. JURISDICI10N, CHOICE OF FORUM, AND PROCEDURE
t 32.01 Introduction
t 32.02 Federal Admiralty Tort Jurisdiction
n
[lJ Statutes Conferring Admiralty Jurisdiction
[aJ In General
[bJ When Admiralty and Civil Jurisdiction Concurrent
[eJ When Admiralty Jurisdiction Exclusive
[2J Elements of Admiralty Jurisdictional Claim
[aJ BJstoricaI Background
[bJ Maritime Nems Requiiement
[iJ Operation of Pleasure Boat
[iiJ Swimmen and Water Skien
[eJ Maritime Situs Reqnirement
t 32.03 Conseqnences of Admiralty Jurisdiction
[lJ In General
[2J Procednre in Federal Admiralty Cases
[aJ Trial by Jury
[bJ Rule 9(h) Designation
[eJ 'I1drd Party Practice
[dJ Venue
[eJ Interlocutory Appeals
[3J Applicable Substantive Law
[aJ Federal Admiralty LaW;
[bJ State Law
t 32.04 Removal of State Court Aetion
[lJ Derivative Jurisdiction
[2J Savings Clause Cases
3!.05-3!.09 Reserved
PART B. SUBSTANTIVE FEDERAL ADMIRALTY LAW
t 32.10 Application of General Maritime Law
t 3!.11 Basis of Liability
[lJ Fault Requiiement
[aJ In General
[bJ Statutory Fault
[i) Statutory Rules
[ii] Equivalence to Teus Motor vehicle Rules
[iii] Presumption of Fault: 'l1ae PenRlflbnia Rule
[lvJ Special Circumstances Doctrine
(Maabew Bender '" Co., iDe.)
(ReI.26-2I01
Pub.706)
SYNOPSIS
[c]
[d]
32-4
Common-Law Presumptions: Wakes and Allisions
Common-Law Negligence
[i] In General
[ii] Duty to Passengers and Others Aboard Vessel
[iii] Res Ipsa Loqnitur
[iv] Proximate Causation
[2] Defenses
[a] No Fanlt: Inevitable Accident
[b] Condnct of Plaintiff: Contribntory Negligence and
Assumption of Risk
[c] Last Clear Chance and Superseding Cause
[d] Laches 01" Statute of Limitations
[3] Damages
[4] Comparative Fanlt: Proportional Allocation of Liability
[5] Joint and Several Liability
[a] In General
[b) Contribntion and Liability of SettHng Co-Defendant
[6] Uniqne Maritime Tort Remedy: Action in Rem to Enforce Lien
§ 32.12 Wrongfnl Death
[I] In General
[2] Death on the High Seas Act
[a] Situs of Occurrence
[b] Concnrrent Jurisdiction
[c] Parties and Limitations
[d] Damages
[3] Wrongfnl Death Under Gene~ Maritime Law
[a] In General
[b] Damages
[c] Persons Entitled to Recover Damages
§ 32.13 Products Liability
§ 32.14 Governmental Liability
§ 32.15 Federal Limitation of Liability
[I] In General
[a] Limitation of Owner's Liability
[b) Privity or Knowledge of Owner
[2] Application to Recreational Vessels
[3] Procedure
§§ 32.16-32.19 Reserved
PART C. SUBSTANTIVE STATE LAW
§ 32.20 Applicability and Sources
§ 32.21 State Statutes
(Manbew IIeDder
a: Co., Inc.)
32-5
SYNOPSIS
t
(MII1bew
[1] Navigational Statutes
[2] Required Equipment
[3] Duties Following Collision, Aeciclent, or Casualty
32.22 Defenses
[1] In General
[2] Proportionate Responsibility
BeDder &; Co., 1Ix:.)
33-2
SYNOPSIS
SYNOPSIS
§ 33.01
Overview of Aviation Litigation
AirHne Crashes
[1J
§ 33.02
Choice of Law and Procedural Considerations
The Most Significant Relationship 1est
[1J
[2J
[2J
[3J
Private Aircraft Accidents
Accidents at Sea or in Navigable Waters
raj
Death on the High Seas Act
[bJ
[cJ
Effect
raj
[bJ
[4J
Jones Act
General Admiralty Law
of Federal Tort Claims Act
Nature of Act
[bJ
Discretionary Function Exception
Federal Aviation Act and Aviation Regulations
Government Contractor Defense
Military Personnel
Foreign Entities Are Parties
Foreign Sovereign Inununity Act
The Warsaw Convention
[cJ
[dJ
The Montreal Convention of 1999
The Hague Conventions
[cJ
[dJ
[eJ
Wben
raj
§ 33.03
AppUcation and Effect of State Law
[1J
Jurisdiction and Venue Considerations
Preemption by Federal Law
[2J
[3J
Wrongful Death and Survival Actions
Common-Law Negfigence
[4J
[5]
Product Liability
[6]
Deceptive Trade Practices Act
[7J
Workers' Compensation Act
Class Actions
[8J
§ 33.04
Liability of Pilots
Duties of a Pilot
[1J
[2J
Pilot Response to Hazardous Weather Conditions
§ 33.05
Liability of Aircraft Manufacturers
NegUgence Actions
[IJ
Breach of Warranty Actions
[2J
Products Liability Actions
[3J
raj
Restatement Position
(ReI. 36-3/2006
Pub.706)
33-3
SYNOPSIS
Types of Defects
Presumption of Nonliability lor CompHance With Government
Standards
(d]
Damages Distinctions Between Physical and Economic Harm
Contribution and Comparative Responsibility
Statute of Repose for Actions Against Manufacturers
[b]
(c]
[4]
[5]
§ 33.06
Liability of Maintenance and Repair Stations
[1]
Negligence
(a]
Maintenance, Repair, Modification, and Inspection
[b]
Effect of AppHcable Federal Regulation
Ii]
Generally
Iii]
Standard of Care
[2]
Strict Liability and Res Ipsa Loquitur
§ 33.07
Liability of Airport Owners and Operators
[1]
Air TraBic Control Related Accidents
Types of Control Facilities
[a]
[b]
Duties and Liability of Air Traftic Controllers
[c]
Comparative Responsibility of Pilot
Premises Liabilities-Maintenance of Airport Grounds
[2]
[a]
MunicipaHties and Other Governmental Entities
[b]
Federal Aviation Regulations-Certification and Operation of Airports
[c]
Standards of Care for Airport Liability
§ 33.08
Liability to Persons and Property on the Ground
[1]
Safety Considerations
[2]
Harm Caused by Aircraft or Objl!cts From Aircraft
[a]
Federal Regulations
[b]
Negligence and Trespass
Crop Dusting Accidents
[3]
§ 33.09
Aviation Insurance Coverage Disputes
[1]
Generally
[2]
Insuring Agreement
[3]
Insurance Coverage Exclusions
(a]
Pilot Warranty Clause
Ii]
Pilot Information
Iii]
V1SU8I Flight Rules and Instrument Flight Rules
[iii]
Hours as Pilot in Command
[iv]
Medical Certificate
[v]
Multi-Engine Rating
[vi]
Operation by Licensed Pilot
(ReL 36-3/2006 Pub.7(6)
§ 33.01[1]
[b]
[c]
[d]
[e]
t 33.10
Limited Air Travel Coverage
Newly Acquired Aircraft
Contractual Liability Exclusion
Airworthiness Certificate Requirement
Discovery and Evidentiary Considerations
[1]
Owner, Operator, and Repair Station Liability Cases
[2]
Manufacturer's Liability Cases
[3]
Air Tramc ControUer Recordings
[4]
Governmental Reports
Access Through Freedom of Information Act
[a]
[b]
National Transportation Safety Board and FAA Reports
[c]
Admissibility and the Hearsay Objection
[5]
Admissibility of Evidence of Insurance
[6]
Presumptions and Judicial Notice
[7]
Use of Expert Witnesses
[8]
Demonstrative Evidence
[9] Damages
§ 33.01
[1]
33·4
SYNOPSIS
Overview of Aviation Litigation
Airline Crashes
Major commercial airline crashes generate significant litigation. Nevertheless,
most lawyers are far more likely to be confronted with claims and litigation
arising from accidents involving privately o~ned aircraft than commercial
aircraft.! Approximately 2,000 accidents involving private aircraft occur in an
average year. 2 Litigation arising from catastrophic crashes of major air carriers
often results in large mUlti-party lawsuits that involve federal multi-district
litigation. 3 Federal multi-district litigation and the law that has developed in that
area and in major air carrier litigation are beyond the scope of this chapter.4
However, many of the principles of law and practical considerations discussed in
!
See [2], below.
2
N.T.S.B. Annual Review for U.S. General Aviation Aircraft (2000).
3
See 28 U.S.C. § 1407.
4 For more information on these topics, see Ch. 31, Common Carriers, Kreindler, AVIATION
ACCIDENT LAW, Ch. 3, Liability of Airlines, and Dombroff, PERSONAL INJURY DEFENSE
TECHNIQUES, Ch. 4, Multi-Party/Multi-Jurisdiction Litigation: Legal Considerations.
(Rd. 36-312006
Pub.706)
40-2
SYNOPSIS
Synopsis
A. Strict Products Liability
§ 40.01 Nature of Strict Products Liability
Establishing Claim
[a] Elements of Strict Products Liability
[b] Types of Defects
[2] Distinguished From Negligence and Warranty
[3] "Product" Defined
Parties
[1] Plaintiffs
[a] Consumers and Users
[b] Bystanders
[c] In the Stream of Commerce
[2] Defendants
[a] Manufacturers
(i] Product Manufacturers
[ii] Component Part Manufacturers
[iii] Apparent Manufacturers
[b] Designers
[c] Sellers
[i] Defmition of "Seller"
[ii] Limited Liability After July 1, 2003
[d] Lessors
[e] Dissolved Corporations
[f] Successor Corporations
[g] Professional Service Providers
[b] Franchisers and Licensors
[i] Market-Sbare or Collective Liability
Tr acing Defect to Defendant
[1] Existence of Defect When Product Left Defendant
[2] Change in Product
Producing Cause
[1] Producing Cause Defined
[2] Substantial Factor
[3] Multiple Causes
[4] Proof of Causation
[5] Presumption of Causation in Marketing Defect Cases
Proportionate Responsibility
Damages
[1] Personal Injury, Wrongful Death, and Property Damages
[1]
40.02
40.03
40.04
40.05
40.06
(ReL34-3/05 Pub.706)
40·3
GENERAL PRINCIPLES
[2]
[3]
§§ 40.07-40.09
Economic Losses
Exemplary Damages
Reserved
B. OTHER THEORIES OF PRODUCTS LIABILITY
§ 40.10
Negligence
[1]
Negligence Cause of Action
[2]
Relationship to Strict Liability Theory
[3]
Defendant's Duty of Care
[a]
Negligent Manufacture and Design
[b]
Negligent Failure to Warn
[4]
Damages
§ 40.11
Breach of Warranty
[1]
Relationship to Strict Products Liability and Deceptive Trade Practices
[2]
Express Warranties
[3]
Implied Warranties Under UCC
[a]
Established by UCC
[b]
Merchantability
[c]
Fitness for Particular Purpose
[4]
Implied Common-Law Warranties Involving Realty
[5]
Comparison With Strict Liability
[a]
Parties
[i]
Privity
[ii]
"Sellers" and Other Defendants
[b)
Defect
[c)
Causation
[d)
Remedies
[i)
Economic Loss
[ii]
Personal Injury and Property Damage
[iii]
DTPA Remedies and Exemplary Damages
[e)
Notice Requirements
[fJ
Defenses
[i)
Statute of Limitations
[ii]
Disclaimers and Remedy Limitations
[iii]
Contributory Negligence
§ 40.12
Innocent Misrepresentation
[1]
Cause of Action for Innocent Misrepresentation
[2]
Actionable Misrepresentation
[3]
Damages
§ 40.13
Deceptive Trade Practice
(Rel.41-8/2008
Pub.706)
41- 2
SYNOPSIS
Synopsis
41.01 "Defect" Define d
[1] Unreasonably Dangerous
[2] Intende d or Fore seeable Use
[3] Inherently Unsafe Products
41.02 Categories of Defects
41.03 Manufacturing Defects
41.04 Design Defects
[1] Nature of Design Defect
[2] Tests for Design Defect
[a] Both Tests Must Be Satisfied
[b) Safer Alternative Design Test
(i) "Safer Alternative Design" Defmed
[ii] Statute or Common Law
[iii] Legislative Intent
(iv] RisklUtility Element
[v] EconomiclTeclmical Feasibility Element
[c) Risk Versus Utility Test
[d) Special Requirements for Firearms and Ammunition
[3] Jury Instructions in D esign Defect Cases
41.05 Marketing Defects
[1] Nature of Marketing Defect
[2] Elements of Marketing Defect Case
[3] Need for Warning
[a] Manufacturer's Duty to Warn and Instruct
[b) Common Knowledge/Inh~rently Unsafe Products
[c) Abreactions (Unusual Reactions)
[4] Foreseeable Risk
[a] Foreseeability at Time of Marketing
[b) Defendant's Expert Status
[c] Proof of Foreseeability
[d] Foreseeable UselMisuse, Wear, or Poor Maintenance
[5] Adequacy of Warning and/or Instruction
[a] In General
[b] Warnings Distingnished From Instructions
[c) Location of Warning
[d] Content of Warning
[i) Specificity
[ii] Inte nsity
[iii] Relationship to Type of User
[6] Who Must Be Warned
(Re1.32- 3104 Pub.706)
41-3
PRODUCT DEFECTS
[a]
Purchasers and Ultimate Users
[i] In General
[il] Reliance on Intermediary
[h] Medical Professional as Learned Intermediary
41.06 Proof of Product Defect
[1] Expert Testimony
[a] In General
[h] Manufacturing Defect Cases
[c] Design Defect Cases
[d] Marketing Defect Cases
[2] Circumstantial Evidence
[a] In General
[h] Proof of Malfunction
[c] Previous Accidents
[3] Subsequent Remedial Measures-Exclusionary Rule
[a] As of September 1, 2003
[h] Prior to September 1, 2003
[4] Manufacturer's Notification of Product Defect: The "Recall
Notice"
[5] Collateral Estoppel
§§ 41.07-41.99 Reserved
(ReI.32--3104
Pub.706)
41A-3
DRUG PRODUCT LIABILITY
SYNOPSIS
§ 41A.Ol
Theories of Liability
[1]
Overview
[2]
Strict Tort Liability
Unreasonably Unsafe Products
[a]
[b]
Nature of Product Defects
[c]
Defense to Unavoidably Unsafe Products Under
Commentk
[i]
Nature of Defense
[ii]
Circumstances Under Wbich Comment k
Defense is Unavailable
[3]
Negligence
[a]
Manufacturer's Duty of Due Care
[b]
Proximate Cause
[4] Breach of Warranty
[a]
Considerations Applicable to Drug Products
[b]
Sales Requirement
[c] Express Warranties
[d] Implied Warranties
[5] Misrepresentation and Fraud
[6]
Misbranding
[7]
Non-Identification Theories
[a]
Development
[i]
In General
[ii]
Diethylstibestrol (DES) Cases
[b]
Alternative Liability
[i]
Basis of Theory
[ii]
Application to Cases Involving Drug Products
[c]
Concert of Action
[d] Enterprise or Industry-Wide Liability
[e] Market Share Theory
[i]
Nature and Status of Theory
[ii]
Market Share Alternative Liability
[iii]
Availability of Punitive Damages
[iv]
Texas' Rejection of Theory
§ 41A.02
Necessity of Adequate Warning
[1]
General Duty
[2]
Analysis of Duty Under Negligence and Strict Tort Liability Principles
[3]
Requirement That Danger Be Known or Scientifically Knowable
[4]
Effect of Marketing
[5]
Individuals Who Must Receive Warning
[a]
Ultimate User of Product
[b]
Prescription Drugs and the Learned Intermediary Doctrine
[c] Vaccines
(Re!. 44-412010 Pub.706)
41A-4
PRODUCTS LIABILITY
§ 41A.03
§ 41A.04
§ 41A.OS
§ 41A.06
Cd]
Contraceptives and IUDs
[e]
Over-the-Counter Drugs
[6] Adequacy of Warning
[a] In General
[b]
Applicable Standards
[c] Effect of Physician's Knowledge or Reliance
Cd] Effect of Compliance With FDA Requirements
[e] Oral Contraceptives and IUDs
[f]
Method of Warning
[i]
In General
[ii]
Package Inserts
[iii]
Physician's Desk Reference
[iv]
Manufacturer's Representatives
[7]
Establishing Causal Link Between Inadequate Warning and Damages
[a] General Requirement
[b]
Presumptions
[c] Considerations Applicable to Negligence Actions
Federal Preemption
Defenses
[1]
Intervening Cause
[2] Comparative Causation
[3] Statute of Limitations
[a]
Personal Injury
[i]
Applicable Law
[ii]
The Discovery Rule
[b]
Wrongful Death
[c] Breach of Warranty
[4] No Indemnity From Drug Manufacturer for Prescribing Physician
Discovery Considerations
[1]
New Drug Application
[2] Adverse Reaction Reports and Consumer Complaints
[3] Government Reports
[4] Court Documents
Evidence of Culpability or Defect
[1]
Forum Considerations
[2] Adverse Reaction Reports and Consumer Complaints
[3] Other Incidents and Products
[4] Subsequent Remedial Measures
[5]
Medical Articles
[6]
Efficacy
[7] Expert's Testimony on Adequacy of Warning
[8] Epidemiological Evidence
[a] Nature of Epidemiology
[b]
Bendectin Cases
(ReI. 44-412010
Pub.706)