We use this blog as a substitute for many different things: A soapbox; a newspaper; a phone call; a social call; a shot of bourbon; and, sometimes, as a replacement for a pile of paper on the floor.

Here’s a post that falls into that last category.

Every time we’re answering a complaint, we’re searching around for our last answer to make sure that we’ve pleaded all of the appropriate affirmative defenses.

So instead of rooting around through our files for that old answer, we’re posting the affirmative defenses here. Now, when we’re looking for the usual suspects to plead as defenses in products cases, we’ll know where to find them. Here’s the collection:

1. Plaintiff’s Complaint fails to state a claim upon which relief may be granted.

2. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes or other periods of limitations or by the equitable doctrine of laches.

3. Plaintiff’s claims are barred by the doctrine(s) contained in § 402A of the Restatement (Second) of Torts, comment k to § 402A of the Restatement (Second) of Torts, and the Restatement (Third) of Torts: Products Liability.

4. Plaintiff’s claims are barred, in whole or in part, by the “learned intermediary,” “informed intermediary” and/or “sophisticated user” doctrines.

5. Plaintiff’s claims are barred because the decedent’s death was actually or proximately caused, in whole or in part, by the intervening, superseding, or illegal conduct of the plaintiff, independent third parties, or events that were extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from defendant’s conduct or control.

6. Plaintiff’s claims are barred because the plaintiff’s injury was actually or proximately caused, in whole or in part, by misuse or unintended use of the product.

7. Plaintiff’s claims are barred, in whole or in part, because the plaintiff’s injuries were caused, in whole or in part, by negligence, fault, or wrongful conduct of the plaintiff or third parties, and any recovery is subject to reduction or offset under the doctrines of comparative fault and contributory negligence.

8. Plaintiff’s damages, if any, are subject to an offset in the amount of any reimbursement received as a result of any insurance or other health benefits plan, or any amounts paid for by any insurance or other health benefits plan.

9. Plaintiff’s claims are barred, in whole or in part, because any injuries or damages allegedly sustained were caused by a preexisting or unrelated medical condition, disease, or illness.

10. Plaintiff’s claims are barred because defendant’s product was designed, manufactured, and marketed in accordance with the state of the art and when the product left defendant’s control, no practical and technically feasible alternative formulation was available that would have prevented the harm for which plaintiff seeks to recover without substantially impairing the safety, efficacy, or usefulness of the product for its intended use.

11. Plaintiff’s claims are barred, in whole or in part, because defendant acted in good faith at all relevant times and gave adequate warnings of all known or reasonably knowable risks associated with the use of its product.

12. Defendant did not breach any implied warranties or any warranties created by law.

13. Plaintiff’s breach of warranty claim is barred by plaintiff’s failure to provide defendant with reasonable or adequate notice of any breach of such alleged warranty.

14. Plaintiff’s claims are barred, in whole or in part, by the Supremacy Clause of the United States Constitution, Article VI, clause 2, and the laws of the United States because defendant’s product is comprehensively regulated by the United States Food and Drug Administration (“FDA”) pursuant to the Federal Food, Drug & Cosmetic Act, 21 U.S.C. §§ 301 et seq. (“FDCA”), and regulations promulgated thereunder, and plaintiff’s claims conflict with the FDCA, with the regulations promulgated by FDA to implement the FDCA, with the purposes and objectives of the FDCA and FDA’s implementing regulations, and with the specific determinations by FDA specifying the language that should or should not be used in the labeling accompanying the drug.

15. Plaintiff’s claims are barred, in whole or in part, by the deference that common law gives to discretionary actions by FDA under the FDCA.

16. Plaintiff’s claims are barred by plaintiff’s failure to comply with conditions precedent to his right to recover.

17. Plaintiff impermissibly seeks to impose liability on conduct protected from liability by the First Amendment to the United States Constitution and by the Constitution of this State.

18. Plaintiff’s claims for punitive damages are in contravention of defendant’s rights under each of the following constitutional provisions:

a. the Commerce Clause of Article I, Section 8 of the United States Constitution;

b. the Contracts Clause of Article I, Section 10 of the United States Constitution;

c. the prohibition against ex post facto laws embodied in Article I, Section 10 of the United States Constitution;

d. the Supremacy Clause of Article VI of the United States Constitution;

e. the Free Speech Clause of the First Amendment of the United States Constitution;

f. the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution;

g. the Takings Clause of the Fifth Amendment of the United States Constitution;

h. the Right to Counsel of the Sixth Amendment of the United States Constitution;

i. the Excessive Fines Clause of the Eighth Amendment of the United States Constitution;

j. the Right to Trial by Jury contained in the Seventh Amendment of the United States Constitution;

k. the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
and
l. similar or corresponding provisions of the Constitution of this State.

19. Plaintiff’s Complaint is defective in that plaintiff has failed to join necessary or indispensable parties.

20. No act or omission of defendant was malicious, willful, or reckless and, therefore, any award of punitive damages is barred.

21. With respect to plaintiff’s demand for punitive damages, defendant specifically incorporates by reference any and all standards or limitations regarding the determination and enforceability of punitive damage awards that are set forth in Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and similar State cases.

22. Because of the lack of clear standards, any imposition of punitive damages against defendant would be unconstitutionally vague and/or overbroad.

23. Plaintiff’s claim for punitive damages is subject to the limitations and requirements of State law.

24. Defendant is entitled to, and claims the benefit of, all defenses and presumptions set forth in or arising from any rule of law or statute in this State and/or any other law or statute that may be applicable.

25. Plaintiff’s claims may be barred, in whole or in part, under the doctrine of primary jurisdiction, in that the pertinent conduct of defendant and all its activities with respect to the subject product have been and are conducted under the supervision of the FDA.

This list is plainly not tailored to any individual case — we’re not talking about any partciular case.

If you’re in a state in which privity is needed to plead a claim for breach of contract, then plead privity, for heaven’s sake.

If plaintiff pleaded a statutory claim, plead any failure to satsify statutory prerequisites.

In some states, you may (incredibly!) be required to plead choice of law as an affirmative defense.

So don’t be silly — don’t mistake a blog post for legal advice.

(And remember to read our ridiculously comprehensive disclaimer, so you don’t think we’re giving you legal advice.)

But take this for what it’s worth.

And, if we left out any defenses that belong in a generic list such as this one, please whistle.

(But whistle real loud. We’re in Philadelphia and Chicago, so we won’t hear you if you whistle softly.)