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: Drug and Device Law

New York, New York (reprise)

By James M. Beck and Mark Herrmann

We posted last year about the NY Court of Appeals excellent decision in Arons v. Jutkowicz, on defense interviews with treating physicians.

We're doing it again. Here's a copy of the Court of Appeals (that's the state's highest court) recent decision in Adamo v. Brown & Williamson holding that, where a product's only function is satisfying the consumer, the plaintiff must show that the safer "alternative" "is as acceptable to consumers as the one the defendant sold." Slip op. at 4. This gives real teeth to the safer alternative design requirement in New York.

In short, a plaintiff can't just offer up some other product as a safer design. We've run into this a lot in medical device litigation, and even some in drugs. So it's a ruling we're happy to see. We also like to see courts reject arguments that amount to automatic liability:

But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.

Slip op. at 5.

There's more we could say, but both of our firms represent tobacco companies - so we won't.

Full post as published by Drug and Device Law on December 16, 2008 (boomark / email).