Friday, August 27, 2010

Duty To Test Cheat Sheet

In the last month, we’ve seen two more appellate decisions definitively rejecting the idea of some sort of separate cause of action – apart from warning or design defect – for “failure to test,” whatever that might be.  In the drug area, as we reported before, the Pennsylvania Superior Court thoroughly killed the concept in Lance v. Wyeth:
[Plaintiff] also maintains that her alleged her causes of action, including her claims for “unreasonable marketing” and “negligent failure to withdraw,” are sustainable because they are akin to a failure to inspect and/or test claim.  Citing Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 140-41 (3d. Cir.1973), [plaintiff] argues that a failure to test claim is valid cause of action. We disagree.
In Hoffman, the United States Court of Appeals for the Third Circuit applied Pennsylvania law and concluded that there was sufficient evidence for the jury to find that the manufacturer failed to adequately test its drug to discover potentially harmful side-effects.  485 F.2d at 140-41.  Regardless of the Hoffman decision, which is not binding upon this Court, Pennsylvania law has not recognized an independent tort for negligent failure to test.  In fact, we have held that “the claim for ‘negligent failure to test’ is not a viable cause of action recognized by our courts[.]” Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 541 (Pa. Super. 2003), aff’d, 881 A.2d 1262 (Pa. 2005).
If there is a duty to test and/or inspect in Pennsylvania, it does not exist as an independent cause of action, but rather, is subsumed within [plaintiff’s] other claims. . . . Therefore, even if there is a general duty to inspect and/or test under Pennsylvania law, it would be subsumed within [plaintiff’s] design defect claims and/or any potential failure to warn claim that [plaintiff] may have had. Because failure to test is not an independent cause of action in Pennsylvania, [plaintiff’s] arguments to the contrary fail.
2010 WL 2991597, at *7-8 (Pa. Super Aug. 2, 2010) (some citations omitted).

Then along comes the South Carolina Supreme Court, and (as we also mentioned before) it does a number on the purported duty to test in Branham v. Ford Motor Co.:
In addition, [defendant] asserts there is no separate “failure to test claim” apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. We agree, for if a product is not in a defective condition unreasonably dangerous to the user, an alleged failure to test cannot be the proximate cause of an injury. The failure to establish that the seatbelt sleeve was in a defective condition unreasonably dangerous to the user for purposes of the strict liability claim requires the dismissal of the companion negligence claim.
2010 WL 3219499, at *2 (S.C. Aug. 16, 2010).

Inspired by these two recent decisions – one in our pharma sandbox, and the other a more general product liability case – we’ve decided to make the non-existent duty to test the subject for our latest cheat sheet.  So that’s what the rest of this post is, a list of all the cases we could find where the misbegotten idea of some separate and independent duty to test has been rejected by a court.  No half-measures here.  To get on this list the court has to hold that there is no separate duty to test apart from well-established product liability claims for warning, design, or (maybe) manufacturing defect.
  1. West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 212 (Iowa April 13, 1972) (rope sling). “For testing to be material, substantial evidence must be introduced of a defect in the article.”  Verdict for plaintiff reversed and remanded for new trial.
  2. Lindquist v. Ayerst Laboratories, Inc., 607 P.2d 1339, 1349-50 (Kan. Mar. 1, 1980) (anesthetic). “The defective condition is the failure of [defendant] to properly warn.” “[T]he plaintiff cannot succeed where he fails to allege or prove that tests or inspections would have been effective” to “produce[] more conclusive results” that would support a changed warning.”  Jury instruction properly refused.
  3. Lewis v. Envirotech Corp., 674 S.W.2d 105, 114 (Mo. App. Sept. 11, 1984) (slurry pump). “There is no case law in Missouri to support plaintiff’s “failure to test” theory.” Motion for new trial denied.
  4. Jones v. Ortho Pharmaceutical Corp., 209 Cal. Rptr. 456, 462-63 (Cal. App. Jan. 3, 1985) (oral contraceptive).  Refusing to let plaintiff shift burden of proof with failure to test claim couched as FDCA-based negligence per se.  Refusing to “presume that had defendant conducted the clinical studies plaintiff contends should have been done, those studies would have established” causation.  Nonsuit affirmed.
  5. Pridemark Custom Plating, Inc. v. Upjohn Co., 702 S.W.2d 566, 576 (Tenn. App. July 29, 1985) (polyurethane foam insulation). Verdict for plaintiff reversed because jury should not have been independently charged on failure to test.  “[Defendant’s “failure to test did not cause plaintiffs’ damages and is not an issue on which the jury should be instructed.”
  6. Shires v. Celotex Corp., 1988 WL 1001970, at *2 (E.D. Pa. March 30, 1988) (cigarettes).  “Any duty defendants may have had to test their [product] would appear to be logically subsumed within plaintiff's defective design or defective manufacture claims.  That is, if the defendants’ failure to test their [product] resulted in the sale of ‘defective’ [products] which ultimately injured plaintiff’s decedent, then the flawed design or manufacturing process would be the proximate cause of plaintiff's injuries, not the failure to test.”  Summary judgment granted.
  7. Cipollone v. Liggett Group, Inc., 683 F. Supp. 1487, 1499 (D.N.J. April 21, 1988) (cigarettes).  “[A]ny claim based on such a failure [to test] is subsumed in plaintiff's failure to warn or alternative design claims.” “[A]bsent a showing that defendants’ inactions resulted in a more dangerous product (either because of a lack of warning or safer design), plaintiff has suffered no actionable injury.”  Directed verdict granted.
  8. Kociemba v. G.D. Searle & Co., 707 F. Supp. 1517, 1527-28 (D. Minn. Feb. 16, 1989) (IUD).  The most widely cited authority for refusing to recognize independent duty to test claims.  “[T]he reason that manufacturers are under a duty to test their products is to discover defects or dangers associated with use of the products. Once the manufacturer has discovered a defect or danger the manufacturer should either change the product’s design or manufacturing process, or warn consumers of the danger associated with using the product. Thus, unless the manufacturer's breach of its duty to test leads the manufacturer to produce a product that is defective in design, manufacture, or warning, no injury can result.”  Judgment n.o.v. (that's "non obstante verdicto" or notwithstanding the verdict) granted.
  9. Pennington v. Vistron Corp., 876 F.2d 414, 419-20 n.5 (June 28, 1989) (applying Louisiana law) (cigarettes). Negligent failure to test “is . . . not actionable per se, but instead is a variation of the failure to warn theory.”  Summary judgment affirmed.
  10. Adams v. G.D. Searle & Co., 576 So.2d 728, 730-31 (Fla. App. Jan. 18, 1991) (IUD). “The duty to test . . . is a subpart of a manufacturer’s duty to design a product with reasonable care, and thus is subsumed in the plaintiffs’ claims for defective design and failure to warn.”  Summary judgment affirmed.
  11. Fane v. Zimmer, Inc., 927 F.2d 124, 130-31 (March 8, 1991) (internal fixation tube and plates) (applying New York law).  Alleged negligent failure to test could not be causal when all product liability claims dismissed.  Directed verdict affirmed.
  12. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 n.5 (5th Cir. Feb. 3, 1992) (Thorotrast) (applying Texas law).  Plaintiff’s “negligence claims, such as the alleged failure to adequately test [the product], are subsumed within” a failure to warn claim. Summary judgment affirmed.
  13. MacDonald v. Monsanto, 1995 WL 581942, at *1-2 & n.3 (5th Cir. Sept. 13, 1995) (unpublished, in table at 68 F.3d 470) (herbicide).  Louisiana’s product liability statute “does not recognize a cause of action for failure to test . . . except insofar as the failure to test . . . renders the product unreasonably dangerous.”  Under prior common law, “failure to properly test must result in either a defect or a failure to warn, and a plaintiff must proceed under one of these theories.  Accordingly, the failure to test per se does not give rise to a cause of action except insofar as it renders the product unreasonably dangerous.”  Summary judgment affirmed.
  14. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 437, 439 (Tex. June 20, 1997) (cigarettes).  Summary judgment against negligent failure to test claim affirmed where “the negligent testing claim is inextricably intertwined with [plaintiffs’] negligent failure to warn claim.”  The “negligent testing claim is inextricably intertwined with advertising and promotional materials because [plaintiffs] allege only that [defendant] should have tested its products to determine the dangerous characteristics about which [it] should have warned consumers.”
  15. Joseph v. Jamesway Corp., 1997 WL 524126, at *6 (Del. Super. July 9, 1997) (stationary bicycle).  “[U]nless the manufacturer’s breach of its duty to test leads the manufacturer to produce a product that is defective in design, manufacture, or warning, no injury can result.  If the manufacturer designs the product safely, manufactures the product safely, and provides an adequate warning of dangers inherent in the use of the product, then a failure to test the product cannot, standing alone, cause any injury. The duty to test is a subpart of the other three duties because a breach of the duty to test cannot by itself cause any injury.”  Summary judgment granted.
  16. Green v. General Motors Corp., 709 A.2d 205, 216 (N.J. Super. App. Div. March 18, 1998) (automobile).  “[A] failure to test or of inadequate testing may be evidential as an explanation of why a design was defective, but it is not in itself proof of a separate basis for liability.”  Held to be harmless error in decision affirming plaintiff's verdict.
  17. Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 921 (Mass. July 16, 1998) (breast implant).  “[E]vidence of failure adequately to test a product is relevant to claims of design, manufacturing, or warning defects, but does not furnish a separate, independent basis for liability.”  Held to be harmless error in decision affirming plaintiff's verdict.
  18. Lambert v. General Motors, 79 Cal. Rptr.2d 657, 660-61 (Cal. App. Nov. 18, 1998) (automobile).  Verdict vacated because liability for failure to test was incompatible with lack of defect.  “Even if [defendant] did not test the [product] . . ., in the absence of a defect, those omissions would not be important. Testing, for example, would not disclose the existence of a defect where there is none.”
  19. Valentine v. Baxter Healthcare Corp., 81 Cal. Rptr. 2d 252, 264 (Cal. App. Jan. 7, 1999) (breast implant).  Directed verdict against failure to test claim affirmed.  “[T]he duty of testing and inspecting has no significance apart from the results of the product’s design and manufacture and the relevant warnings.”  Where other defect claims are dismissed, “nothing remains upon which to hang the testing and inspection duties.”
  20. Theriot v. Danek Medical, Inc., 168 F.3d 253, 256 (5th Cir. March 10, 1999) (bone screws).  “[Plaintiff] is arguing that he should be permitted to proceed to trial if [defendant] cannot demonstrate that it adequately tested its product.  There is no basis in the [Louisiana product liability statute] or case law for such a rule.” Summary judgment affirmed.
  21. Clark v. Danek Medical, Inc., 1999 WL 613316, at *3 n.4 (W.D. Ky. Mar. 29, 1999) (bone screws).  “[I]nadequate testing” claim is “subsumed” by warning claim.  Summary judgment granted.
  22. Harris v. Danek Medical, Inc., 1999 WL 1117106, at *3 (M.D. La. July 22, 1999) (bone screws).  Summary judgment granted against failure to test claim. Quoting and following Theriot).
  23. Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 91 (N.D.N.Y. March 3, 2000) (cigarettes).  Summary judgment granted against “negligent failure to test,” as it relates either to warning or design defect claims and satisfies neither.
  24. Patton v. Country Condo Ass’n, 2000 WL 33728374, at *4 (III. App. July 7, 2000) (unpublished) (insecticide).  “Where plaintiffs alleged a failure to test, they have alleged an incomplete tort.  The failure to test is not a negligent act in itself; rather, a failure to test leads to a failure to correct either a manufacturing defect or a failure to warm of harm resulting from the product.  Thus, the duty to test does not cause injury by itself but is a subpart of designing a safe product, manufacturing it safely, and providing adequate warnings of dangers inherent in the use of the product.”  Dismissal of testing claim affirmed.
  25. Neri v. R.J. Reynolds Tobacco Co., 2000 WL 33911224, at *19 (N.D.N.Y. Sept. 28, 2000) (cigarettes).  There is “no case law to support the existence of a separate claim for negligent testing,” and “these particular allegations [are] incorporated under the causes of action for failure to warn and negligent design.” Summary judgment granted.
  26. Oddi v. Ford Motor Co., 234 F.3d 136, 143-44 (3d Cir. Oct. 13, 2000) (automobile).  “We have found no authority to support [plaintiff’s] contention that Pennsylvania recognizes an independent tort for “negligent failure to test.”  “[W]hether we view [plaintiff’s] theory as crashworthiness or negligence arising from a failure to test, he must establish a defect in the design of the truck in order to recover.”  Summary jusgment affirmed.
  27. Linsley v. C.R. Bard, Inc., 2000 WL 343358, at *6 (E.D. La. Mar. 30, 2000) (surgical mesh).  Summary judgment granted against plaintiff’s “only . . . argument that [defendant] did not adequately test its product.”
  28. Mercer v. Pittway Corp., 616 N.W.2d 602, 626-27 (Iowa Sept. 7, 2000) (smoke detector).  Reversible error requiring new trial to submit separate negligent testing claim to jury.  “[T]he evidence presented by plaintiffs in support of their negligent testing claim is in reality a negligent failure to warn claim.”
  29. LaBelle v. Philip Morris, Inc., 243 F. Supp.2d 508, 519 (D.S.C. July 5, 2001) (cigarettes).  Summary judgment granted.  “Pennsylvania law has not explicitly recognized an independent tort for 'negligent failure to test.'”
  30. Stapper v. GMI Holdings, Inc., 2001 WL 1664920, at *5-6 (Cal. App. Dec. 31, 2001) (unpublished) (garage door opener).  Verdict for defendant affirmed.  “[A] manufacturer's breach of its duty to test cannot, standing alone, suffice to impose liability on the manufacturer for a plaintiff's injuries.  For liability to attach, there must be evidence that the manufacturer’s failure to test adequately led it to produce a defectively designed or dangerous product which in turn caused the injuries.  In other words, a failure to test cannot be deemed the cause of injury if there is no defect or danger to be disclosed by testing.”
  31. In re N Phenylpropanolamine Litigation, 2002 WL 244858, at *1 (Pa. C.P. Philadelphia Co. Feb. 5, 2002) (PPA).  “No such independent tort [for negligent failure to test] exists.”  Sustaining preliminary objection.
  32. Miller v. Pfizer Inc., 196 F.Supp.2d 1095, 1124 n.97 (D. Kan. Feb. 11, 2002) (Zoloft). Summary judgment granted.  “The duty to warn and the duty to test are, for all practical purposes, coextensive.”
  33. Stitt v. Philip Morris, Inc., 245 F.Supp.2d 686, 694 (W.D. Pa. March 13, 2002) (cigarettes).  Motion to dismiss granted.  “Pennsylvania law . . . does not recognize an independent cause of action for negligent testing. Rather such claims are subsumed within a plaintiff's claim for defective design or failure to warn.”
  34. McClain v. Metabolife International, Inc., 193 F. Supp.2d 1252, 1257 (N.D. Ala. March 27, 2002) (ephedrine).  “Plaintiffs have not directed the Court’s attention to a single authority supporting the maintenance of such a claim under Alabama law, nor is the Court independently aware of any such authority.  Therefore, summary judgment with respect to Plaintiff's negligent failure to test” claim, as a separate cause of action, is granted.”
  35. Bergfeld v. Unimin Corp., 226 F. Supp.2d 970, 982 (N.D. Iowa April 8, 2002) (silica sand).  Summary judgment granted.  Failure to test claim “is merely another way of arguing that [defendant’s] labels should have warned against using [the product].”
  36. McCroy v. Coastal Mart, Inc., 207 F. Supp.2d 1265, 1279 (D. Kan. June 21, 2002) (drink dispenser).  Judgment n.o.v. granted.  Failure to test does not lie without a product defect.  “Liability is premised not on the fact of injury alone, however, but upon the manufacturer’s failure to take reasonable steps to discover a defect in its product before a defective condition causes injury.  Having already found that plaintiffs failed to establish sufficient evidence of a defect, the court also finds insufficient evidence for a jury to impose liability for a failure to inspect or test.”
  37. Messer v. Amway Corp., 210 F.Supp.2d 1217, 1234 (D. Kan. June 13, 2002) (paint remover).  Summary judgment granted.  Negligent testing claim is a variant of failure to warn.
  38. Smith v. Daimlerchrysler Corp., 2002 WL 31814534, at *5 (Del. Super. Nov. 20, 2002) (automobile).  “In Delaware, there is no separate cause of action failure to test or inspect in a products action. The duty to inspect is part of the larger duty to design a product with reasonable care.” Summary judgment granted.
  39. Ashton v. Aventis Pasteur, Inc., 2003 WL 21361355, at *6 (Pa. C.P. Philadelphia Co. May 22, 2003), aff’d, 851 A.2d 908 (Pa. Super. 2004) (vaccine).  “[N]egligent failure to test is not an independent tort under Pennsylvania law.”  Sustaining preliminary objection.
  40. Dow Agrosciences LLC v. Bates, 332 F.3d 323, 333 (5th Cir. June 11, 2003), reversed on other grounds, 544 U.S. 431 (2005) (preemption) (herbicide).  “[A] negligent testing claim is, as a matter of Texas law, a variation of an action for failure to warn.”  Summary judgment affirmed.
  41. Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 541 (Pa. Super. Nov. 24, 2003), aff’d mem., 881 A.2d 1262 (Pa. 2005) (cigarettes).  “[T]he claim for ‘negligent failure to test’ is not a viable cause of action recognized by our courts.  Summary judgment affirmed.
  42. Solo v. Trus Joist MacMillan, 2004 WL 524898, at *13 n.26 (D. Minn. March 15, 2004) (furnace).  “The duty to test . . . is not a separate cause of action under Minnesota law, but rather a subpart of the duties to safely design and manufacture products and to provide adequate warnings.”  Summary judgment granted.
  43. Irion v. Sun Lighting, Inc., 2004 WL 746823, at *16 (Tenn. App., April 7, 2004) (halogen lamp).  “We find no basis for this alleged duty to independently test in Tennessee law. Under the Tennessee Product Liability Act the test is whether the product was defective or unreasonably dangerous.”  Summary judgment affirmed.
  44. Williams v. Dow Chemical Co., 2004 WL 1348932, at *18-19 (S.D.N.Y. June 16, 2004) (pesticide).  Under Florida law, “a manufacturer’s duty to inspect and test is not a separate cause of action,” “is subsumed in the plaintiffs’ claims for defective design and failure to warn,” and “is dismissed as duplicative.”  Summary judgment granted.
  45. Villegas v. Deere & Co., 135 Fed. Appx. 279, 281 (11th Cir. June 13, 2005) (forklift).  “Georgia does not recognize a cause of action for negligent testing.”  Summary judgment affirmed.
  46. Jones v. Leslie Controls, Inc., 2005 WL 1581503, at *5 (Cal. App. July 7, 2005) (unpublished) (asbestos).  Verdict vacated for new trial because liability for failure to test is incompatible with lack of defect.  “Since [the manufacturer] has been exonerated of liability for manufacture, design and warning, nothing remains upon which to hang the testing and inspection duties.”  “[U]nless the manufacturer’s breach of its duty to test leads the manufacturer to produce a product that is defective in design, manufacture, or warning, no injury can result.”
  47. Kunzie v. Family Medical Care, P.A., 2005 WL 6317652 n.1 (Fla. Cir. Aug. 25, 2005) (Lamictal).  “Negligent testing . . . is subsumed into plaintiff’s claims of defective design and failure to warn and does not constitute a separate cause of action.”  Summary judgment granted.
  48. Laisure-Radke v. Par Pharmaceutical, Inc., 426 F. Supp.2d 1163, 1168-69 (W.D. Wash. March 31, 2006) (generic Prozac).  Washington product liability statute preempts common-law negligence claims for “negligent failure to test or otherwise investigate.” Summary judgment granted.
  49. In re Prempro Products Liability Litigation, 2006 WL 1897267, at *4 (E.D. Ark. July 11, 2006) (hormone replacement therapy).  “[T]he ‘failure to test’ claim is simply a component of [plaintiff’s] failure to warn and negligence claims,” not an “independent cause of action.”  Summary judgment granted.
  50. In re Prempro Products Liability Litigation, 2006 WL 1981902, at *4 (E.D. Ark. July 13, 2006) (hormone replacement therapy).  “[T]he ‘failure to test’ claim is simply a component of [plaintiff’s] failure to warn and negligence claims,” not an “independent cause of action.”  Summary judgment granted.
  51. Graham v. Medtronic, Inc., 2006 WL 2194012, at *2 (M.D. Fla. Aug. 2, 2006) (external defibrillator).  Claims dismissed for failure to state a claim “to the extent they attempt to assert a cause of action for negligent failure to inspect and test the device.”
  52. Latiolais v. Merck & Co., 2007 WL 5861354, at *3 n.1 (C.D. Cal. Feb. 6, 2007), aff’d, 302 Fed. Appx. 756 (9th Cir. 2008) (Zocor).  Summary judgment granted against failure to test. “[T]his liability theory is subsumed by the manufacturer's duty to warn, and it does not change the premise of Plaintiff's claims, which is that [defendant’s] failure to warn of any product defects or dangers-tested or not-ultimately caused [injury].”
  53. Conway v. A.I. DuPont Hospital for Children, 2007 WL 560502, at *5 (E.D. Pa. Feb. 14, 2007) (applying Delaware law) (cardiac stent).  “[C]ourts have concluded that a ‘failure to test’ is encompassed by claims for design defect and failure to warn.”  Motion to dismiss granted.
  54. Sykes v. Glaxo-SmithKline, 484 F. Supp.2d 289, 318 n.32 (E.D. Pa. March 28, 2007) (pediatric vaccines).  “[U]nder Pennsylvania law an inadequate testing claim does not support an independent claim for relief in strict product liability.” Judgment on the pleadings granted.
  55. Burley v. Kytec Innovative Sports Equipment, Inc., 737 N.W.2d 397, 408 & n.6 (S.D. Aug. 1, 2007) (sports training equipment).  “A manufacturer's duty to test and inspect traditionally does not give rise to an independent cause of action for products liability.”  Summary judgment affirmed.
  56. Tuosto v. Philip Morris USA Inc., 2007 WL 2398507, at *11 (S.D.N.Y. Aug. 21, 2007) (cigarettes).  “‘Failure to test' is not a cause of action under New York’s strict products liability law.”  Judgment on the pleadings granted.
  57. Vanderwerf v. SmithKlineBeecham Corp., 529 F. Supp.2d 1294, 1306 n.15 (D. Kan. Jan. 9, 2008) (Paxil).  “[P]laintiffs’ testing claims are subsumed in plaintiffs’ warning claims because their theory is that proper testing would have resulted in more adequate warnings.”  Summary judgment granted.
  58. Sykes v. Bayer Pharmaceuticals Corp., 548 F. Supp.2d 208, 215 (E.D. Va. Feb. 12, 2008) (vaccine).  Judgment on the pleadings granted against failure to test claims. “ Virginia recognizes only three ways in which a product may be unreasonably dangerous,” and failure to test is not one of them.
  59. Stratford v. SmithKline Beecham Corp., 2008 WL 2491965 at *6 (S.D. Ohio June 17, 2008) (Paxil).  A claim for failure to test (“negligent pharmaco-vigilance”) is outside the three specified defects recognized in Ohio’s product liability statute, and is dismissed without prejudice to being repleaded as a proper claim.
  60. Bailey v. Wyeth, Inc., 2008 WL 2856146 (N.J. Super. Law Div. July 11, 2008) (hormone replacement therapy).  Failure to test claim barred by presumption of adequacy of FDA-approved labeling, as claim amounted to an attack on the risk information in the label.  Summary judgment granted.
  61. Singh v. Toyota Motor Corp., 2009 WL 2477774, at *4 (Cal. App. Aug. 13, 2009) (unpublished) (automobile).  Jury properly not charged separately on duty to test.  “The duty of testing . . . has no significance apart from the test results of the product's design. . . .  In other words, the duty to test is subsumed within the duty to design, and a breach of the duty to test cannot by itself cause any injury if no defect in the design has been found.”
  62. Oxford v. Foster Wheeler LLC, 99 Cal. Rptr.3d 418, 435 (Cal. App. Sept. 9, 2009) (asbestos in boilers).  Verdict vacated for new trial because liability for failure to test is incompatible with lack of defect.  “The negligent testing theory, however, would be inconsistent with the jury’s finding for defendant on liability for design defect.  Even if defendant failed in this respect, there could be no causation of injury or recovery for such failure if there was no defect in the product.”
  63. Tuosto v. Philip Morris USA Inc., 672 F.Supp.2d 350, 354 n.2 (S.D.N.Y. Nov. 19, 2009) (cigarettes).  “‘[F]ailure to test’ is not a cognizable claim under New York products liability law.”  Motion to dismiss granted.
  64. McSwain v. Sunrise Medical, Inc., 689 F. Supp.2d 835, 847-48 (S.D. Miss. Feb. 8, 2010) (wheelchair).  “[T]he negligence claim for failure to conduct adequate testing would, like a negligence claim for defective design or failure to warn, would be subsumed by the [Mississippi product liability statute].”  Summary judgment granted.
  65. Phillippi v. Stryker Corp., 2010 WL 2650596, at *2 (E.D. Cal. July 1, 2010) (pain pump).  “When the warnings accompanying a prescription product adequately inform the physician of dangers inherent in its use, the manufacturer’s alleged failure to test that product cannot, by itself, either cause injury or be a source of liability of the manufacturer.  Imposing liability for breach of a purported 'independent duty to conduct long-term testing' would be beyond the pale of any known California tort doctrine, because, inter alia, the causal link between Plaintiff's known harm, and the unknown outcome of the hypothetical testing is entirely speculative.”  Summary judgment granted.
  66. Lance v. Wyeth, 4 A.3d 160, 168-69 (Pa. Super Aug. 2, 2010) (fen-phen).  If a duty to test exists at all it is subsumed by other claims.  Rejecting older, contrary precedent.  See above for quote.  Summary judgment affirmed.  An appeal is pending in the Pennsylvania Supreme Court.  See Lance v. Wyeth, 15 A.3d 429 (Pa. 2011)
  67. Branham v. Ford Motor Co., 701 S.E.2d 5, 9 (S.C. Aug. 16, 2010) (automobile).  Without any conventional product defect rendering the product unreasonably dangerous, there is not duty to test.  See above for quote.  Reversible error requiring new trial to charge jury on separate theory.
  68. Torkie-Tork v. Wyeth, 757 F. Supp.2d 567, 572-73 (E.D. Va. Dec. 15, 2010) (hormone therapy).  There is no separate duty to test under Virginia law.  A duty to test would improperly eliminate the state of the art from defense from negligence and expand the "reason to know" standard.
  69. Krumpelbeck v. Breg, Inc., 759 F. Supp.2d 958, 972-73 (S.D. Ohio Dec. 27, 2010) (pain pump).  No duty to test for unknown risks imposed by either Ohio product liability statute or the FDCA.
  70. Rodriguez v. Stryker Corp., 2011 WL 31462, at *9-10 (M.D. Tenn. Jan. 5, 2011) (pain pump).  "[I]t is clear that there is no broadly recognized 'duty to test' in Tennessee."  Any duty to test for currently unknown risks would be "unreasonable."  Motion to alter judgment denied, Rodriguez v. Stryker Corp., 2011 WL 672555 (M.D. Tenn. Feb. 17, 2011).
  71. Moore v. Ford Motor Co., 332 S.W.3d 749, 761 & n.7 (Mo. Jan. 25, 2011) (automobile).  Requiring warnings about failure to test "would confuse rather than serve the purpose of warnings."  Failure to test may only be an aspect of a warning or design defect claim.
  72. Hall v. Sunjoy Industries Group, Inc., 764 F. Supp.2d 1297, 1302-03 (M.D. Fla. Feb. 18, 2011) (patio chair).  Florida does not recognize a separate claim for failure to test.
  73. Pavelko v. Breg, Inc., 2011 WL 782664, at *8 (D. Colo. Feb. 28, 2011) (pain pump).  No duty to test for unknown risks imposed by either Colorado law or the FDCA.
  74. Wolfe v. McNeil-PPC, Inc., 773 F. Supp.2d 561, 570 (E.D. Pa. March 30, 2011) (hormone therapy).  Pennsylvania does not recognize a tort for negligent failure to test.
  75. Salvio v. Amgen, Inc., 810 F. Supp.2d 745, 751-52 (W.D. Pa. Aug. 18, 2011)  (Enbrel).  Pennsylvania does not recognize a tort for negligent failure to test.
  76. St. Clair v. Nellcor Puritan Bennett LLC, 2011 WL 5331674, at *8-9 (D. Ariz. Nov. 7, 2011).  Arizona does not recognize negligent testing as a distinct theory of liability.
  77. Couick v. Wyeth, Inc., 2012 WL 79670, at *7 (W.D.N.C. Jan. 11, 2012).  North Carolina does not recognize negligent testing as a distinct theory of liability.
  78. Todd v. Stryker Corp., 2012 WL 2922727, at *4 (E.D. Cal. May 1, 2012) (pain pump).  California does not recognize failure to test as an independent theory of liability in either negligence or strict liability.  "Imposing liability for breach of a purported independent duty to conduct long-term testing would be beyond the pale of any known California tort doctrine."
  79. Rodriguez v. Stryker Co., 680 F.3d 568, 574 (6th Cir. May 21, 2012).  In Tennessee, the duty to test “collapses into the failure-to-warn claim."  "The law does not require a company to test for hidden risks that neither it nor the medical community had a reasonable basis to suspect.”
  80. Hogue v. Pfizer, Inc., 2012 U.S. Dist. Lexis 140674 (S.D. Ohio Sept. 27, 2012).  No duty to test is claim allowed under Ohio product liability statute.  Alleged violation of federal duty not actionable under exclusive product liability statute.
  81. Huggins v. Stryker Corp., ___ F. Supp.2d ___, 2013 WL 1191058 (D. Minn. March 25, 2013).  Neither failure to test nor “Failure to review scientific literature” are independent causes of action under Minnesota law.
  82. In re C. R. Bard, Inc., 2013 WL 3821280 (S.D.W. Va. July 23, 2013).  Georgia does not recognize failure to test as a separate cause of action.  Evidence of failure to test prior to sale may be relevant to design, warning, or punitive damages.  Testing evidence may not be used to argue for warnings about matters not within the state of the art of the time of sale.
  83. Ball v. Takeda Pharmaceuticals America, Inc., 2013 WL 4040395 (E.D. Va. Aug. 8, 2013).  Virginia does not recognize a separate claim for failure to test.
  84. Baird v. Bayer Healthcare Pharmaceuticals, Inc., slip op. at 4-5, C.A. No. 6: 13-077-DCR (E.D. Ky. Oct. 31, 2013).  Kentucky does not recognize a separate claim for failure to test, "because it is simply a failure-to-warn claim in disguise."
  85. Drager v. PLIVA USA, Inc., 741 F.3d 470, 477 (4th Cir. Jan. 28, 2014).  There can be no separate claim for negligent failure to test under Maryland law.
  86. Small v. Amgen, Inc., 2014 U.S. Dist. Lexis 28904, at *15 (M.D. Fla. March 6, 2014).  There is no separate claim for negligent failure to test under Florida law.

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