Rather less than three years in the past we by a federal court docket in Pennsylvania that twisted Texas and Supreme Court docket precedent to search out an unbiased declare for failure to check beneath Texas regulation.  So, we couldn’t resist running a blog a few Texas court docket reaching the precise reverse conclusion. 

Earlier this yr we about a superb Justice of the Peace resolution in Baksic v. Ethicon Inc., 2023 WL 1192538 (Magazine. W.D. Tex. Jan. 27, 2023) that granted abstract judgment to defendant on all claims – failure to warn and design defect – for an absence of causation.  Our prior publish lauded the court docket’s evaluation of different design, and we’re completely satisfied to report it was adopted by the district court docket.  In opposing the abstract judgment movement, plaintiff tried to muddy the waters by arguing that her negligence declare was not restricted to warning and design defects.  So, the Justice of the Peace requested for extra briefing to shut the loop.  That led to right this moment’s resolution – Baksic v. Ethicon Inc., 2023 WL 3681693 (Magazine. W.D. Tex. Apr. 20, 2023). 

Whereas plaintiff argued that her grievance alleged varied negligence claims, in her transient she solely addressed failure to check.  Due to this fact, that was the one further declare the court docket thought of.   As famous above, the authority is cut up on whether or not Texas acknowledges failure to check as an unbiased declare not subsumed beneath one of many merchandise legal responsibility large three – warning, design, or manufacturing defect.  And the Justice of the Peace stopped in need of saying the declare was not acknowledged as a result of on this case, failure to check is “too inextricably intertwined with [plaintiff’s] unsuccessful failure-to-warn claims to face by itself.”  Id. at *2.  We discover it onerous to think about a case the place that’s not true. 

The court docket had already decided that plaintiff had not established a causal hyperlink between her alleged accidents and the alleged insufficient warning.  The identical lack of causation is deadly to the failure to check declare and demonstrates why they’re “inextricably intertwined”:

Had [defendant] carried out extra testing, the warning might have been extra detailed, however the Court docket has already discovered there was no causation as a matter of regulation even assuming an insufficient warning. Abstract judgment for one means abstract judgment for the opposite.

Id.  They rise and fall collectively.  The identical is true of design defect.  Plaintiff might argue that extra testing might have led to the invention of a safer various design sooner or later, however she had no proof to assist that conclusion, or that it will have been out there on the time of plaintiff’s surgical procedure, or that it will have been authorized by the FDA.  The identical issues that felled plaintiff’s design defect declare likewise, undermined her failure to check declare, such because it have been. Id. 

So, at most plaintiff had her specialists’ testimony that defendant didn’t do sufficient testing.  What she lacked was proof of a causal hyperlink between that deficiency and her alleged accidents.  The dearth of testing will need to have prompted one thing that in flip prompted damage to plaintiff.  That “one thing” is without doubt one of the large three – testing that may have led to an improved warning, testing that may have led to an improved design, or (possibly) testing that may have led to discovery in a producing drawback.  In different phrases, failure to check doesn’t stand by itself.