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AREAS OF INTEREST:   Products liability, hedonic damages.

LEGAL IMPACT:  Largest verdict in New Hampshire history upheld in products liability case based on design defect of generic drug.

CASE CAPTION: Bartlett v. Mutual Pharmaceutical Co., Inc., First Circuit Court of Appeals, No. 10-2277 (5/2/12)


            The plaintiff suffered severe, permanently disfiguring and debilitating injuries caused by an adverse reaction to sulindac, a generic non-steroidal anti-inflammatory (“NSAID”) drug manufactured by the defendant.  The case was tried before a jury in the New Hampshire Federal District Court based on the theory that the drug was defective in its design because the risks outweighed its benefits, making it unreasonably dangerous to consumers.  The jury awarded the plaintiff $26.01 million, including $16.5 million for pain, suffering and loss of enjoyment of life.  The defendant appealed.

HOLDING:  Affirmed.

          In New Hampshire a manufacturer is liable for selling a product in a defective condition unreasonably dangerous to the user.  The court held that the plaintiff is not required to show that there exists an alternative, safer design for the product and, therefore, it was not necessary to prove that the drug could be made in a different and safer form.

            Since sulindac is a generic drug, the manufacturer cannot alter the warning label required by the FDA and, therefore, the plaintiff did not have the ability to bring a state law failure to warn claim.  However, the court held that since the manufacturer can choose not to make the drug at all, users injured as a result of taking the drug can pursue a design defect claim.  The court also ruled that the warning label was relevant insofar as its inadequacy made the product itself more dangerous under a risk-benefit test.

            The court also ruled that several “missteps” by plaintiff’s counsel during trial, including leading their own witnesses, mischaracterizing the record, and attempting to use demonstrative aids in a misleading or prejudicial manner, were not sufficient to have influenced the verdict given the severity of the plaintiff’s injuries and strength of her expert evidence. 

            Finally, the court held that although the verdict was by far the largest award in New Hampshire history, it was not so clearly disproportionate to the harm suffered that it must be set aside.



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