The Continuing Search for Proper Perspective: Whose Reasonableness Should be at Issue in a Prescription Product Design Defect Analysis?

25 Pages Posted: 2 Apr 2010

See all articles by Richard L. Cupp

Richard L. Cupp

Pepperdine University - Rick J. Caruso School of Law

Date Written: 1999

Abstract

This article addresses standards for analyzing alleged design defects in prescription products. It contrasts the Restatement of Torts (Third): Products Liability’s approach -- no design liability attaches if a reasonable healthcare provider would prescribe the product to any class of patients -- with a reasonable manufacturer approach. The article reviews judicial decisions addressing prescription product design liability, and concludes that the case law supports a reasonable manufacturer approach over the Restatement (Third)’s approach. The article argues that in most instances both approaches will lead to the same result, and that design liability will be rare under either approach, but that the reasonable manufacturer test is superior to the Restatement (Third)’s reasonable healthcare test.

Keywords: tort, Restatement, products liability, prescription, drug, medication, pharmaceutical, design defect, reasonable, manufacturer, healthcare

Suggested Citation

Cupp, R.L., The Continuing Search for Proper Perspective: Whose Reasonableness Should be at Issue in a Prescription Product Design Defect Analysis? (1999). Seton Hall Law Review, Vol. 30, 1999, Available at SSRN: https://ssrn.com/abstract=1582586

R.L. Cupp (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-4658 (Phone)

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