When this blogger thinks about the “Big Three” her mind goes to This is Us – Kevin, Kate and Randall. Admittedly, that’s not the only “Big Three.” Most people probably go to Great Britain, the United States, and the Soviet Union in World War II. But that alliance certainly was shorter than the Pearsons. Now, if you want longevity, ABC, CBS, and NBC are referred to as the Big Three in traditional broadcast television. Being the Big Three prior to the 1990s might have not seemed like much, but still be considered the Big Three today in a field of over 1700 broadcast television stations in the United States is saying something. Did you know there is Big 3 pro-basketball league founded by Ice Cube that pits former NBA and international players against each other in 3-on-3 basketball; that it is in its sixth season; and it airs on CBS? This blogger didn’t. And finally, if you are into astrology, apparently the Big Three are your sun, moon, and rising signs. But that is about as far as we are willing to explore that particular trinity.
So, while in historical, pop, and sports culture Big Three may have varied meanings, in products liability it is set in stone—design defect, manufacturing defect, and warning defect. That’s what the court had to remind plaintiff in Schulze v. Ethicon, Inc., 2023 WL 2914381 (D. Utah Apr. 4, 2023).
Plaintiff alleges she was injured following surgical implantation of pelvic mesh. She brought claims for strict liability and negligence. Her negligence claims included design defect, manufacturing defect, failure to warn (the Big Three) and “failure to test, inspect, train, study, and conduct adequate post-market vigilance or surveillance.” Id. at *1. The Big Four – in accounting maybe, in products liability no.
During briefing plaintiff withdrew her manufacturing defect claim. Id. at *4n.1. That same briefing failed to provide any support for her independent claim of negligence based on a failure to test, study, or train. Id. at *3. Utah law recognizes the Big Three. Other products liability tort claims are either invalid or subsumed within one of the Big Three. For example, some courts have found that failure to test claims are subsumed under failure to warn. In other words, if it exists, plaintiff can offer evidence of a purported failure to test, but it would be in support of one of the three recognized negligence causes of action, not it’s own independent claim.
The court found additional support for the Big Three in the Restatement of Torts (Third) which only defines three activities creating products liability: “liability for a manufacturing defect due to a defect in design, the manufacturing process, or in a failure to warn.” Id.at *2 (citations omitted).
Plaintiff also had a TwIqbal problem. Her complaint failed to allege facts to plausibly support her failure to test, study, or train claims. Plaintiff did not allege how defendant failed to test the product or train surgeons or how those failures purportedly caused her injuries. So, even if recognized under Utah law, they would have been dismissed.
The court limited plaintiff’s negligence claims to design defect and failure to warn only and denied a request for a second amended complaint. It’s the Big Three for the win.