The court continued to give plaintiffs a pass with its cursory analysis of the negligence claims. The negligent design claim was automatically determined by the strict liability design defect claim and the negligent warnings claim was automatically determined by the strict liability warning claim. Id. at *46. Maybe it is semantics or hazy recollection of hornbook law from when we looked at actual books on law, but “strict liability” is supposed to be stricter than negligence. Negligence requires evidence that the defendant’s conduct in design or warnings fell below the applicable standard of care, not just that the design or warnings themselves were inadequate. So, the court again needed to look at the proffered evidence on additional elements of the cause of action before letting plaintiffs get past summary judgment.
Punitive damages followed the same pattern. While court acknowledged that the focus should be on evidence of defendants’ intent in the allegedly culpable actions and inactions, no evidence of anything suggesting bad intent—“willful and wanton misconduct”—was identified. To the contrary, the court identified that reliance on FDA could show the absence of bad intent, but held that such reliance did not “as a matter of law, preclude Plaintiffs’ claims from going to the jury.” Id. at *50. Ultimately, plaintiffs’ mere allegation of bad intent was enough:
Defendants, by contrast, lost one of two challenged affirmative defenses for failing to offer evidence. Each minor plaintiff’s mother administered an additional dose of defendant’s product after the appearance of the symptoms that the label advised should result in stopping use and getting medical help. But “Defendants fail to offer any evidence that either parent’s provision of one additional dose of [defendants’ product] after the appearance of new symptoms contributed to Plaintiffs’ injuries.” Id. at *56. So, a defendant has to come forward with evidence of proximate cause for a defense like comparative negligence, but the plaintiff does not have come forward with evidence of proximate cause for a claim. After all this, the defendants were allowed to keep their defense that the mothers assumed the risk by reading the warnings and giving their children the medication. As you would expect, the dispute centered on whether knowledge of a risk of “severe allergic reaction” with listed symptoms could count as assuming the risk of SJS/TEN. This time, the court’s trust in what a reasonable jury could find worked to the defendants’ advantage, as such a jury could find the mothers were “aware of the specific kinds of dangers that use of the products entailed.” Id. at *60 (emphasis in original). To show we do not just say rulings for a plaintiff are bad and rulings for a defendant are good—we do not—this ruling leaves open the issue of what risk needs to be assumed for there to be an effective assumption of risk defense. We would say that issue could be a real headache at trial, but that would be the sort of lame medication joke we dispensed with nine paragraphs ago.