Construction or Composition
The plaintiffs did not articulate how the drug ingested by the decedent “deviated from its intended composition or construction.” Kennedy, 2013 U.S. Dist. LEXIS 123292 at *7. In its opposition brief, the plaintiffs offered a “superficial allegation without support,” but that does not cut it under the LPLA. Id. at *8. Indeed, such generalities would not cut it under manufacturing defect law anywhere.
The plaintiffs must allege a specific design defect, and must also allege “how the design defect is either caused by or relates to the injury in question.” Id. at *9. As in most jurisdictions, Louisiana does not permit a jury to infer defect from the mere fact that the injury occurred. Bad things happen. Side effects happen. That does not mean there was a defect. If it did, no drug or device could be sold in our land of the free and litigious. The Kennedy complaint contained generalities about how the design was defective and how its risks exceeded its benefits, but the complaint was bereft of how the design was “defective or what aspect of the design caused the injury.” Id. at *10.
Here is what the plaintiffs said in their complaint about inadequate warning: “The warnings given did not accurately reflect the symptoms … or severity of the injuries … full and proper warning should have been given with respect to the use of this drug.” Id. at *12. Well, you could probably drop those allegations into any drug case. They say almost nothing. The plaintiffs failed to assert “a causal connection between the claimed inadequate warning and Kennedy’s resulting damage.” Id. They did not allege “a dosage amount; plaintiffs have not alleged who administered the drug. In fact, there is not even an allegation that a physician prescribed the medication for the decedent.” Id. The court would not presume those facts. Nor would it interpret the hazy allegations as a ticket to discovery.
Express warranty is the only LPLA theory that might conceivably embrace the plaintiffs’ criticisms of the marketing of the drug. But, as with the other legal theories in the Kennedy complaint, the plaintiffs’ allegations are threadbare. The plaintiff failed to show how the drug marketing “suppressed information, helped the company gain a market share, or induced persons to use the drug under the ruse of safety.” Id. at *14.