ANNUAL LAW UPDATE 2015
PRODUCTS LIABILITY
By William C. Love
Hyde, Love & Overby LLC
1121 S. Glenstone
Springfield, MO 65804
Office 417-831-4046
Fax 417-831-4989
williamlove@cs.com
GRIFFIN v KANDI TECHNOLOGIES CORP, et. al., 454 S.W.3d 341 (Mo.
App. S.D. 2014)
Survivors of a go-kart driver and passenger killed when they were ejected from the gokart as it crashed brought a wrongful death action against the manufacturer, importer
and seller of the go-kart based on product liability theories of defect and failure to warn.
Summary Judgment was entered on behalf of the seller before trial. An interlocutory
default judgment was entered against the manufacturer but subsequently set aside after
the jury verdict in favor of the importer.
Upon appeal, the summary judgment for the seller was sustained because
The mere act of selling a product is not sufficient to show the seller
knew or had reason to know the product was likely to be
dangerous…. The phrase "reason to know" has been defined as
being satisfied when "the actor has information from which a
person of reasonable intelligence or of the superior intelligence of
the actor would infer that the fact in question exists, or that such
person would govern his conduct upon the assumption that such
fact exists." …. Thus, where a seller in support of a motion for
summary judgment provides a sworn statement that he or she
lacked knowledge of the dangerous condition, and the plaintiff
J--15
responds by merely adducing evidence that the sellers were
responsible for ordering the stock and placing it in the store, the
plaintiff has not produced sufficient facts to defeat the motion for
summary judgment.
Additionally, the seller’s representation that the go-karts were safer than other four
wheelers does not demonstrate reason for the seller to know of any defect subjecting it
to liability. Finally, “Scientific knowledge as shown by authoritative publications cannot
be used to show knowledge on the part of a party without proof that the party had actual
knowledge of the publication.” The Summary Judgment was upheld.
The reversal of the interlocutory default judgment against the Manufacturer was upheld
because the default judgment was void for lack of personal jurisdiction over the foreign
Manufacturer.
BLAES v. JOHNSON & JOHNSON, et. al., _____ F.Supp.3d_____, 2014
WL 6885830 (USDC ED Mo 2014)
Plaintiff brought wrongful death action against Johnson & Johnson alleging Conspiracy
& Concert of Action claims. Plaintiff alleges that the decedent suffered from ovarian
cancer as a result of her use of Johnson & Johnson’s Baby Powder and Shower to
Shower products on her perineal area from 1972 to 2011. Plaintiff further alleged that
the company conspired with other defendants to misrepresent and suppress the truth
regarding the products and their use of talc. Plaintiff alleged the defendant companies
pooled resources to defend talc use with biased research and the release of false
information to avoid regulation.
The trial court rejected the defendant’s motion to dismiss the conspiracy cause of action
and found the allegations of the Petition sufficient to meet the heightened pleading
requirement for false representations and alleged fraudulent acts. While sufficiently
alleging a cause of action for conspiracy, however, the court recognized that Missouri
does not recognize a “Concert of Action” theory and dismissed that claim although the
underlying facts of such claim can be an element of a conspiracy claim.
BRINKLEY v. PFIZER, INC., et. al. , 772 F.3d 1133 (USCA 8th Circuit
2014)
Plaintiff brought an action against a generic drug manufacturer after developing a
neurological disorder while using the generic drug to treat her gastroesphageal reflux.
She alleged state law theories of design defect, failure to warn, negligence, breach of
express and implied warranties and a violation of the Missouri Merchandising Practices
Act. The trial judge dismissed all claims against the generic manufacturer.
J--16
Plaintiff’s physician prescribed the brand name drug Reglan to plaintiff. As allowed by
Section 338.056 RSMo, the pharmacist substituted its generic equivalent. The Federal
Food, Drug, and Cosmetic Act, 21 USC Section 301 et seq., required the generic
manufacturer to prove to the US Food and Drug Administration their product was the
same as Reglan. The FDCA requires a generic drug to have the same active
ingredients, route of administration, dosage form, strength and labeling as the brandname drug on which it is based. Generic manufactures are not allowed to alter labeling
or issue additional warnings under the FDCA.
Plaintiff alleged in her state law claims that the Brand Name manufacturer and the
Generic Manufacturer failed to warn as to the dangers of long-term use of the
medication. The trial court held that plaintiff’s state law claims against the generic
manufacturer were preempted by the FDCA and thus subject to dismissal. While
plaintiff alleged that a label change by the brand name manufacturer was not mirrored
by the generic manufacturer, the court held that the learned intermediary doctrine
precluded a change in result holding that the prescribing physicians’ reliance on the
information from the brand-name manufacturer broke any causal link between the
generic manufacturer’s failure to change the label and plaintiff’s injuries. The court held
that Federal law preempts any state law claim requiring a generic manufacturer to
redesign its drug, change its labeling or leave the market to avoid liability under state
law.
J--17
J--18