When we last left our story, plaintiffs had lost their fight to have Pennsylvania law apply to residents of Texas ( Atkinson I) and lost a chunk of their claims as barred by the Texas statute prohibiting failure to warn claims where a drug’s label has been approved by FDA and comment k ( Atkinson II).  But the court left the door open for a third installment when it ruled that while plaintiffs had failed to adequately plead their negligent failure to test claims, they would get a chance to amend.  Spoiler alert – we’re skipping to the end.  In Atkinson III, the court found plaintiffs’ negligent failure to test claim as amended survived TwIqbal satisfying the standards for pleading both negligence and gross negligence.  Atkinson v. Luitpold, 2020 WL 4518022 (E.D. Pa. Aug. 6, 2020).  That’s a horrible ending.  We’ve all read books we’ve loved right up until the end (for this blogger it’s Tara French’s In the Woods and Alice’s Adventures in Wonderland (that ending only worked for Bob Newhart).  But the ending of Atkinson III isn’t really what rankles us – it’s the story itself.  The ending is only bad because it’s based on a botched premise from the start – that Texas recognizes an independent claim for failure to test.

It’s this bungled conclusion that led to plaintiffs being given the opportunity to re-plead the claim in the first place.  That’s Atkinson II, 2020 WL 1330705 (E.D. Pa. Mar. 23, 2020)), which had many more positives than negatives so we didn’t really focus on the court’s faux pas on failure to test.  But now that the claim has survived round three, we thought it time to elaborate.

To do so, we have to step back to Atkinson II for just a moment.  The court’s ruling that Texas allows an independent duty to test, when no warning or design claims exist, is inexplicable because the court cites American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 437 (Tex. 1997) as supporting such an independent duty when in fact the Texas Supreme Court held, “the negligent testing claim is inextricably intertwined with the [plaintiffs’] negligent failure to warn claim” and affirmed summary judgment for the same reason as warnings.  See Atkinson II, 2020 WL 1330705, at *9.

In both Atkinson II and Atkinson III, the court also relies on Romero v. Wyeth LLC, 2012 WL 12547105, at *4 (E.D. Tex. May 30, 2012).  Romero does not address a duty to test as an independent claim at all.  In fact, the only mention of testing comes in the court’s analysis of plaintiff’s failure to warn claim which it dismisses.  Atkinson III conveniently leaves out the first part of the quote it relies on.  The full text reads:

Moreover, a manufacturer also has a duty to instruct its users on the safe use of its product, which means that it must “not only keep abreast of scientific knowledge, discoveries, and advances, but, more importantly, test and inspect its product.

Romero, at *4 (emphasis added).  The court was talking about a duty to warn not a duty to test.

The last case relied on by Atkinson III is Bates v. Dow Agrosciences LLC, 544 U.S. 431, 444 (2005).  But once again, a closer look belies the court’s interpretation of this case.  The question before the Supreme Court in Bates was whether certain claims were preempted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Notably, at the start of the Court’s analysis it states that “[t]he briefing and the record leave some confusion as to what precise claims are at issue.”  544 U.S. at 443n.15.  Therefore, the determined that it would decide if the following claims were preempted:  “breach of express warranty, fraud, violation of the Texas DTPA, strict liability (including defective design and defective manufacture), and negligent testing. We will also address negligent failure to warn, since the Court of Appeals read petitioners’ allegations to support such a claim.”  Id.  This was further explained by Justice Thomas, concurring in part and dissenting in part:  “petitioners have not advanced an actual failure-to-warn claim. Instead, the Court of Appeals treated petitioners’ claims for negligent testing and defective design and manufacture as “disguised claim[s] for failure to warn.”  Id. at 457.  Given the less than clear set of claims under review, it is hard to read this as a ringing endorsement of an independent duty to test under Texas law.

Indeed, the Court of Appeals decision in Bates is further support for a duty to test being subsumed under a duty to warn.  “[A] negligent testing claim is, as a matter of Texas law, a variation of an action for failure to warn.”  Dow Agrosciences LLC v. Bates, 332 F.3d 323, 333 (5th Cir. June 11, 2003), reversed on other grounds, 544 U.S. 431 (2005).  Fifth Circuit precedent on the issue both pre- and post-dates GrinnellSee Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 n.5 (5th Cir. Feb. 3, 1992) (plaintiff’s “negligence claims, such as the alleged failure to adequately test [the product], are subsumed within” a failure to warn claim);  Morris v. PLIVA, Inc., 713 F.3d 774, 778 (5th Cir. 2013) (noting that any “useful reporting” resulting from adequate testing would “ostensibly consist of some sort of warning”).  Morris sums up negligent failure to test claims as “yet another attempt to circumvent disfavored failure-to-warn claims.”  Id.

 So how did the Atkinson court wind up turning Texas law on its end?  We simply don’t know.  We aren’t going to even hazard a guess.  We’re putting this down as an outlier decision that simply got it wrong.  If this were a book review it would read – predictable bad ending built off an under developed story line brimming with plot flubs that are simply unbelievable.