Utah Federal Court Dismisses Birth Defect Failure To Warn Claim

Author:Mr Stephen J. McConnell
Profession:Reed Smith
 
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Today Time Magazine announces its Person of the Year. The publisher called us a week or so ago to say we were PROBABLY going to be named Man (Person) (Blog) of the Year, but we would have to agree to an interview and a major photo shoot. We said "probably" is no good and took a pass. Thanks anyway!

[None of that actually happened. You might even call it fake news.]

Still, we can see why this blog would receive a major award for its literary achievements. We admit that we are not quite on the same level as, say, James Joyce's Ulysses, which 84 years ago on this date was found by an SDNY judge not to be obscene. We also must ruefully acknowledge that our case analyses are not as funny and transgressive as Lolita, which Vladimir Nabokov completed 64 years ago on this date. But we have occasionally encountered preemption issues as mystifying as Ulysses and plaintiff pseudo-experts who made the unhinged Humbert Humbert character in Lolita seem rational.

If there is a product liability issue that lends itself to literary invention, it is the issue of warnings. All that even a minimally creative plaintiff lawyer needs to do is parse an existing warning, then dream up some specification or adjective that would frighten doctors or patients just a tiny bit more. Stephen King is a fine writer, and odds are that he could do a splendid job of boosting terror in both warning labels and failure to warn claims. Of course, let's remember that we are talking about fiction.

It is not fictional that there are many assorted asinine warning labels out there based on fear of lawsuits. A hairdryer bears a warning against use by folks "while sleeping." A tag on an iron helpfully advises against ironing clothes while worn on the body. A bag of peanuts cautions us that the product ... contains nuts. The instructions for a chainsaw counsel against trying to stop the chain with one's hands. An over-the-counter bottle of sleeping pills lists possible side effects, including ... drowsiness.

There is more than a little fiction at work in the failure to warn claim in Cerveny v. Aventis, Inc., 2017 U.S. Dist. LEXIS 197194 (D. Utah Nov. 29, 2017). You may remember the name Cerveny. This litigation has already produced one of the best decisions of 2017. The crux of this latest Cerveny decision was the fiction that the plaintiffs' proposed warning would pertain to the plaintiffs. The court ultimately arrives at a sensible ruling on inapplicability of a warning about a risk to a population...

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