threshold issue of marginal analysis Rebuttable 2 EXCEPTION a No application of

Threshold issue of marginal analysis rebuttable 2

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threshold issue of marginal analysis | Rebuttable 2. EXCEPTION a. No application of the design defect if harm is directly a result 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 HARM W.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) considering i. The seriousness of the harm compared to likelihood of the harm compared to harms of same type (allergies among the allergies) 1. If HIGH then D = L 2. If LOW then D = NL ii. Counters: Burden may be cheap to prevent iii. Counters: Restatement § 402A Comment j which indemnifies warnings under a express assumption of risk theory) 1. Counter to the counter: Restatement 3d has abandoned comment j 39
MARKETING DEFECTS – THIRD-PARTY DEFECTS X. Introduced by a third-party? (Liriano) If the defect was introduced by a third-party then ask 1. If YES ask if the danger was patently obvious a. Apply Liriano (Meatgrinder case) i. D = NL 1. 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 logic b. Apply Restatement 3dT § 2 or Dawson 40
MARKETING DEFECTS – DRUGS AND UNAVOIDABLE SUBSTANCES Y. Involves unavoidable substances like drugs Z. Ask what is primary purpose of the product? Apply 402A. comment k 1. If unavoidably unsafe but valuable D = L 2. EXEMPTS “property prepared products” APPLIES ONLY TO 3. DRUGS (R 3dT § 6) D = L only if Harm > Benefits or if no doctor would diagnose DESIGN DEFECT CLAIMS FOR DRUGS 1. Counter: Common law claims D = L if no warning EXEMPTION “Learned Intermediary” if physician failed to warn (Brooks) 2. Counter: Vaccines 3. Counter: If drugs are marketed to the consumer 41

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