Product liability claim vs negligence claim involving medical device

PRODUCT LIABILITY VS NEGLIGENCE (medical device) 

Normally, strict products liability and negligence are separate causes of action with different elements. Shaun T. Mian Corp. v. Hewlett-Packard, 237 S.W.3d 851, 857 (Tex. App.-Dallas 2007, pet. denied). However, here [PLAINTIFF] alleged no negligence other than conduct relating to whether the ventilator was unreasonably dangerous when sold. See id. As a result, [Plaintiff's] negligence theories are encompassed and subsumed in his defective product theories, and [Plaintiff's] burden at trial would be to prove injury resulting from a product defect. Id. Therefore, any error in disposing of [Plaintiff's] negligence claims cannot have caused the rendition of an improper judgment or prevented [PLAINTIFF] from properly presenting his case to this Court. See TEX. R. APP. P. 44.1(a); Hewlett-Packard, 237 S.W.3d at 857. [Plaintiff's] right to recover against Respironics stands or falls on the outcome of his products liability claims. Hewlett-Packard, 237 S.W.3d at 857. We thus affirm the trial court's judgment as to [Plaintiff's] negligence causes of action. Id.

STRICT LIABILITY 

Products liability imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's injuries. Id. The plaintiff must prove the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Hewlett-Packard, 237 S.W.3d at 858. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858.

EXPERT TESTIMONY REQUIRED 

Generally, the requirements to prove a design defect in a products liability action necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); Champion v. Great Dane Ltd. Partnership, 286 S.W.3d 533, 538 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

Here, [Plaintiff] failed to present expert testimony that the ventilator was defective when it left the hands of Respironics. See Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858.

Products liability theories 

Products liability theories: defective design, defective manufacturing, and defective marketing.

Products liability imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's injuries.  The plaintiff must prove the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858. Generally, the requirements to prove a design defect in a products liability action necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); Champion v. Great Dane Ltd. Partnership, 286 S.W.3d 533, 538 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

SOURCE: DALLAS COURT OF APPEALS - No. 05-11-01057-CV - 7/23/2014

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

Federal Preemption [affirmative defense against state-law claim]

When federal law overrides state law A state law that conflicts with federal law is preempted and has no effect. U.S. CONST. art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 747 (1981); BIC Pen, 251 S.W.3d at 504. State law may be preempted in three ways: (1) expressly, by a federal law specifically preempting state law; (2) impliedly, by the scope of a federal law or regulation indicating Congress intended the federal law or regulation to exclusively occupy the field; or (3) impliedly, by the state law conflicting with a federal law or regulation to the extent it is impossible to comply with both or by the state law obstructing Congress’s objectives as reflected by the federal law. BIC Pen Corp. v. Carter, 251 S.W.3d 500, 504 (Tex. 2008) SOURCE: Texas Supreme Court - 6/17/11 - Bic Pen Corp. v. Carter II, No. 09-0039 (Tex. June 17, 2011)(Johnson)(product liability, cigarette lighter safety for children)

Prerequisites for Breach of Warranty Claim

   
BREACH OF WARRANTY CLAIM - NOTICE AND OPPORTUNITY TO CURE

To maintain an action for a breach of warranty, a buyer must notify the seller that a breach occurred within a reasonable time after he discovers or should have discovered any breach. See Tex. Bus. & Com. Code Ann. § 2.607(c)(1) (West 2009).

The burden of alleging and proving proper notice is on the buyer. Tex. Bus. & Com. Code Ann. § 2.607(c)(1); U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 200 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that notice requirement is better described as condition precedent for buyer’s cause of action than affirmative defense).
 
Failure to notify the seller of the breach, thereby allowing the seller an opportunity to cure, bars recovery on the basis of breach of warranty. See Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 189 (Tex. App.—Dallas 1996, no writ). A general expression of the buyer’s dissatisfaction, however, may be sufficient to comply with section 2.607. U.S. Tire-Tech, Inc., 110 S.W.3d at 201. And, ordinarily, notice is a question of fact to be determined by the trier of fact; it becomes a question of law only if no room for ordinary minds to differ exists. Carrol Instr. Co. v. B.W.B. Controls Inc., 677 S.W.2d 654, 657 (Tex. App.—Houston [1st Dist.] 1984, no writ). In addition, courts have applied the section 2.607 bar only to UCC breach of warranty claims. See Lochinvar Corp., 930 S.W.2d at 189 (holding that failure to notify the seller under 2.607(c)(1) of a breach, thereby allowing the seller an opportunity to cure, bars recovery on the basis of breach of warranty). Compare Sw. Lincoln-Mercury, Inc. v. Ross, 580 S.W.2d 2, 4 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (holding that where breach of warranty is foundation of claim for treble damages under DTPA, buyer must notify seller that breach of warranty has occurred, in accordance with section 2.607(c)(1)) with Mobil Min. & Minerals Co. v. Texas Auto Pool, Inc., 01-91-00093-CV, 1992 WL 211503, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31, 1992, writ denied) (mem. op., not designated for publication) (holding that section 2.607(c)(1) does not bar non-breach of DTPA warranty claims).

Section 2.607, therefore, would not be a bar to Hull’s fraud, negligence, negligent misrepresentation, breach of contract, and non-breach of DTPA warranty claims. We conclude that the trial court erred in granting the defendants’ traditional summary judgment motion.

 SOURCE: Houston Court of Appeals for the First District - 01-10-00724-CV - 5/12/11