Thank You For Submiting Feedback!
The Supreme Court of Nebraska holds that Restatement (Second) of Torts § 402 A cmt. k should be applied on a case-by-case basis and as an affirmative defense in cases involving prescription drug products. Under Restatement (Second) of Torts § 402 A, an application of comment k does not provide a blanket immunity from strict liability for prescription drugs. Rather, the plaintiff is required to plead the consumer expectations test, as he or she would be required to do in any products liability case. The defendant may then raise comment k as an affirmative defense. The comment will apply to except the prescription drug product from strict liability when it is shown that (1) the product is properly manufactured and contains adequate warnings, (2) its benefits justify its risks, and (3) the product was at the time of manufacture and distribution incapable of being made more safe.
Aimee Freeman, filed a petition alleging seven theories of recovery against the appellee pharmaceutical company, Hoffman-La Roche, Inc. (Hoffman). She seeks damages for injuries she sustained following her use of the prescription drug Accutane. Hoffman demurred on the basis that the petition failed to state a cause of action. The district court dismissed Freeman’s petition based upon prior case law applying a blanket immunity from strict liability for prescription drugs.
Did the district court err in dismissing Freeman’s petition based upon prior case law applying a blanket immunity from strict liability for prescription drugs?
The court concluded that the district court properly sustained Hoffman's demurrer as to claims based on fear of future product failure, a manufacturing defect, an express warranty under Neb. Rev. Stat. (U.C.C.) § 2-313 (Reissue 1992), or negligence. However, Freeman’s claims based upon design and warning defects, and misrepresentation were adequate. Further, the court specifically overruled McDaniel v. McNeil Laboratories, Inc., 196 Neb. 190, 241 N.W.2d 822 (1976), and instead, allowed Freeman leave to amend her petition to plead that the drug was unreasonably dangerous under a "consumer expectations" test, holding that, in Nebraska, Restatement (Second) of Torts § 402 A, cmt. k established an affirmative defense on a case-by-case basis.