ST. LOUIS — A federal judge in Missouri has ruled that failure to warn does not absorb claims of design defect, breach of warranty and negligent failure to test and denied Wyeth Inc.'s motion for partial summary judgment in a diet drug case (Virginia Cavender v. American Home Products Corporation, et al., No. 4:02CV1830 ERW, E.D. Mo., Eastern Div.; 2007 U.S. Dist. LEXIS 33415).
"Plaintiff's various theories of recovery (negligence, strict liability and breach of warranty) merge into one legal theory called a product liability claim," U.S. Judge E. Richard Webber of the Eastern District of Missouri said in a May 7 opinion based on Kansas substantive law and citing Baughn v. Eli Lilly & Co. (356 F. Supp. 2d 1177, 1183 [D. Kan. 2005]). "Kansas law, however, recognizes three ways in which a product may be defective: (1) a manufacturing defect (a flaw in the manufacturing of the product); (2) a warning defect (a failure to adequately warn of a risk or hazard related to the product design; and (3) a design defect (a product which although perfectly manufactured contains a defect that makes it unsafe). . . . Plaintiff may, therefore, assert both design defect and failure to warn claims against Defendant."
"Additionally, Kansas courts have recognized breach of warranty and negligence claims in products liability cases," he said.
On each of those theories, the judge said, AHP, now Wyeth Inc., has failed to show there is no genuine issue of material fact.
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