Photo of Rachel B. Weil

Over the Fourth of July weekend, we in the Philadelphia area learned that 120 of the “new, state-of-the-art” trains in our regional commuter rail system were being pulled out of service. Someone noticed that the trains were listing to one side as they traveled down the tracks, and, on inspection, discovered cracks in structural beams in the cars’ undercarriage. So the defective trains are out of service, the rail system’s capacity has been reduced by one-third, and the result is bedlam.   Trains packed with standing passengers bypass stations toward the ends of their lines, leaving commuters stranded.  Train frequency has been slashed, delays and cancellations are rampant, and everyone is pretty upset.  And pretty vocal about it.  Oh, and did I mention that the problem won’t be rectified until at least the end of August, cementing this anarchy right through the Democratic National Convention, headed for our fair city in less than three weeks.   Two of the three Philadelphia bloggers (McConnell and Weil) commute from the suburbs (Bexis lives a 45-minute walk from the office in West Philly), and the disruption has been substantial.  But we suppose we should be grateful that the cracks were discovered before the house of cards tumbled tragically down.

Cracks also plague the foundation of today’s decision. In Crochet v. Bristol-Myers Squibb and Otsuka America Pharmaceuticals, Inc., 2016 U.S. Dist. LEXIS 83685 (M.D. La. June 28, 2016), the plaintiff alleged that the prescription drug Abilify caused him to develop tardive dyskinesia (“TD”), a neurological disorder that resulted in permanent, uncontrollable movements of his mouth and jaw, including lip smacking and jaw clenching.  Among the plaintiff’s claims were a design defect claim under the Louisiana Products Liability Act (“LPLA”) and a claim for “redhibition” under Louisiana law.  (Our co-blogger, Mr. McConnell, suggested this case for blogging just so we could use the word “redhibition” – but we already had, )  As the court explained, “Under Louisiana law, a buyer has a warranty against redhibitory defects, or vices, in the thing sold.  A defect is redhibitory when . . . its use is so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect.” Crochet, 2016 U.S. Dist. LEXIS 83685 at *10 (internal punctuation and citation omitted).  Recovery under the theory of redhibition is limited to economic loss, including rescission of purchase price – it does not include recovery for personal injury.  The defendants filed a 12(b)(6) motion seeking dismissal of the plaintiff’s design defect and redhibition claims.


First the good news. In addressing the plaintiff’s redhibition claim, the court noted that redhibition contemplates recovery for hidden defects, and that “[a] defect is not hidden, and therefore not redhibitory, when the buyer know of it either because it was disclosed by the seller or because the buyer discovered it himself.” Id. (citation omitted).  To determine whether the product is defective, the buyer “must make more than a casual observation of the object; he must examine the thing to ascertain its soundness.” Id. (citation omitted).

In moving to dismiss the plaintiff’s redhibition claim, the defendants argued that the plaintiff had failed to state a redhibition claim because he had not alleged a specific defect in the drug, and that, to the extent that it could be assumed that the defect is the fact that the drug can cause TD, the defect was “apparent and obvious” because the drug’s warning labels clearly warned of the risk of TD. The plaintiff countered that he had stated a claim because he alleged that the drug’s TD warnings were inadequate to advise him of the actual risk of developing TD, and that the defect was “latent, not possible [sic] of being discovered by simple inspection. . . .” Id. at *12.

The court gave this argument the back of its figurative hand, holding that the risk of developing TD “was readily apparent by reading the attached warning label.” Further, while the Plaintiff maintained “that the defendants failed to disclose the actual risk of developing TD, . . . it is clear from reading the warning label that Plaintiff was advised” that taking the drug could cause TD. Id at *13.  As such, the court concluded, “Based on this warning, the Court cannot find that Plaintiff has stated a claim for redhibition.   Plaintiff was clearly notified” of the alleged defect in the drug, which “had the potential to cause TD, and the warning likewise explained TD and its symptoms. Id. at *15-16.   The court went on to admonish that the plaintiffs argument about the adequacy of the TD warning were more appropriate to his LPLA failure to warn claim, because the only issue in a redhibition claim is “simply whether the buyer was warned of the defect.  Considering the warning label, . . . Plaintiff was aware, upon reasonable inspection of the warning label, that the nature of the product could potentially cause TD.”

Redhibition claim dismissed. Would that such common sense had prevailed in the court’s consideration of the plaintiff’s design defect claim.

Design Defect

The court explained that, to meet his burden of proving a design defect under the LPLA, the plaintiff was required to prove “both that an alternative design existed at the time the product was manufactured and that the risk avoided by using the alternative design . . . would have exceeded the burden of switching to the alternative design . . . .” Id. at *6 (internal punctuation and citations omitted).  The plaintiff alleged that the defendants failed to consider an alternative design of the medication that would not cause TD, and the defendants contended  that these allegations failed to state a design defect claim because the plaintiff did not allege any safer alternative design.

The court held “that Plaintiff’s allegation that Defendants failed to consider the design of other available drugs” that could have treated the plaintiff’s condition with a lower risk of TD was sufficient to state a design defect claim under the LPLA. Id. at *9 (emphasis added).   Get that?  “Other available drugs.”  By broadening the definition of “alternative design” to include completely different products, the court ignored the fact that it has been widely held – and well settled in the Fifth Circuit since the 1999 case of Theriot v. Danek Medical, Inc., 168 F.3d 253, 255 (5th Cir. 1999) – that a different drug, device, or surgical treatment is not an “alternative design” for a product alleged to be defective.   (Bexis wrote a post about Theriot – and the whole notion that a different product is not an “alternative design” – a few years ago.  You can see it here.) And, by holding that a drug can be “defective” because a different drug doesn’t carry the same risks, the court undercut fundamental notions of product liability, including comment k’s edict that a particular drug has value though it may be “unavoidably unsafe.” This misconstruction of the alternative design requirement perpetuates the sloppy pleading that is the hallmark of so many mass torts and the passivity of courts in dismissing “design defect” claims plaintiffs could never prove if held to the correct standard.   We lament this poor decision, and we trust we will have plenty of time to think about it as we stand all the way home on our train.