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threshold issue of marginal analysis | Rebuttable2.EXCEPTIONa.No application of the design defect if harm is directly aresult of exact performance (McCarthy) (Bullet case)37
V.Is the marketing issue common knowledgeIf there an inadequate warning or design?1. Apply Restatement 2dt 402 A and ask if the harm is patentlyobvious?38
FAILURE TO WARN (MARKETING DEFECTS) – LOW FREQUENCY HARMW.Implicates the ordinary consumer (Brown)Is the missing warning not applicable to the “ordinary consumer”?1.If the risks don't apply to the “ordinary consumer” a.Apply (Brown v. McDonald Corp) consideringi.The seriousness of the harm compared to likelihood of the harm compared to harms of sametype (allergies among the allergies)1.If HIGH then D = L 2.If LOW then D = NLii.Counters: Burden may be cheap to preventiii.Counters: Restatement § 402A Comment j which indemnifies warnings under a express assumptionof risk theory)1.Counter to the counter: Restatement 3d has abandoned comment j39
MARKETING DEFECTS – THIRD-PARTY DEFECTSX. Introduced by a third-party? (Liriano)If the defect was introduced by a third-party then ask1. If YES ask if the danger was patently obviousa.Apply Liriano (Meatgrinder case)i.D = NL1.Counter: Maybe no duty in general to warn since too obvious (Newman dissent)2. If NO ask if there could be a better alternative design using design defect logicb. Apply Restatement 3dT § 2 or Dawson40
MARKETING DEFECTS – DRUGS AND UNAVOIDABLE SUBSTANCESY.Involves unavoidable substances like drugsZ. Ask what is primary purpose of the product? Apply 402A. comment k1.If unavoidably unsafe but valuableD = L2.EXEMPTS “property prepared products”APPLIES ONLY TO3.DRUGS (R 3dT § 6)D = Lonly if Harm > Benefits or if no doctor would diagnoseDESIGN DEFECT CLAIMS FOR DRUGS1. Counter: Common law claims D = L if no warningEXEMPTION “Learned Intermediary” if physician failed to warn (Brooks)2. Counter: Vaccines 3. Counter: If drugs are marketed to the consumer41