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From Products Liability Law Daily, November 5, 2013

Patient’s claim that manufacturer failed to test IUD was included in failure to warn claim

By John W. Scanlan, J.D.

An IUD user’s claim against the manufacturer for allegedly failing to adequately test the IUD was subsumed into her failure to warn claim under Kentucky law, the U.S. District Court for the Eastern District of Kentucky ruled (Baird v. Bayer Healthcare Pharmaceuticals, Inc., October 31, 2013, Reeves. D.). In addition, the court dismissed the patient’s negligent misrepresentation claim, and also dismissed the claim for punitive damages because it was a prayer for relief rather than a separate cause of action.

Background. After Tasha Baird had a Mirena Intrauterine Device (IUD) implanted by her doctor, she allegedly experienced complications, requiring surgery and other medical treatments and resulting in permanent injuries, pain and suffering, expenses for medical treatment, and economic loss. She filed suit against Bayer Healthcare Pharmaceuticals, the manufacturer of the Mirena IUD. Bayer moved for dismissal of some of her claims under Rule 12(b)(6), including those for strict products liability—defect due to failure to adequately test, breach of express warranty, breach of implied warranties, negligent misrepresentation, and punitive damages.

Failure to adequately test. The claim that the manufacturer failed to adequately test the IUD was dismissed. It was unclear whether there was an independent duty to test pharmaceutical products under Kentucky law, and the court determined that this claim was subsumed into the patient’s failure to warn claim because it included the question of whether the manufacturer had satisfied its general duty to exercise reasonable care.

Breach of warranties. The claims for breach of express and implied warranties were dismissed because there was no privity of contract between the patient and the manufacturer. Privity of contract is an essential element for claims for breach of warranty, and the patient did not make any assertions regarding her purchase of the IUD, her status as a buyer, and the manufacturer’s status as a seller.

The case number is 6: 13-077-DCR.

Attorneys: Amy Collignon Gunn (The Simon Law Firm, PC) for Tasha Baird. Brian P. O'Donoghue (Goldberg, Kohn, Bell, Black Rosenbloom & Moritz) for Bayer Healthcare Pharmaceuticals, Inc.

Companies: Bayer Healthcare Pharmaceuticals, Inc.

MainStory: TopStory DesignManufacturingNews MedicalDevicesNews KentuckyNews

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