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A little less than three years ago we posted about a decision by a federal court in Pennsylvania that twisted Texas and Supreme Court precedent to find an independent claim for failure to test under Texas law.  So, we could not resist blogging about a Texas court reaching the exact opposite conclusion. 

Earlier this year we posted about an excellent magistrate decision in Baksic v. Ethicon Inc., 2023 WL 1192538 (Mag. W.D. Tex. Jan. 27, 2023) that granted summary judgment to defendant on all claims – failure to warn and design defect – for a lack of causation.  Our prior post lauded the court’s analysis of alternative design, and we are happy to report it was adopted by the district court.  In opposing the summary judgment motion, plaintiff tried to muddy the waters by arguing that her negligence claim was not limited to warning and design defects.  So, the magistrate asked for additional briefing to close the loop.  That led to today’s decision – Baksic v. Ethicon Inc., 2023 WL 3681693 (Mag. W.D. Tex. Apr. 20, 2023). 

While plaintiff argued that her complaint alleged various negligence claims, in her brief she only addressed failure to test.  Therefore, that was the only additional claim the court considered.   As noted above, the authority is split on whether Texas recognizes failure to test as an independent claim not subsumed under one of the products liability big three – warning, design, or manufacturing defect.  And the magistrate stopped short of saying the claim was not recognized because in this case, failure to test is “too inextricably intertwined with [plaintiff’s] unsuccessful failure-to-warn claims to stand on its own.”  Id. at *2.  We find it hard to imagine a case where that is not true. 

The court had already determined that plaintiff had not established a causal link between her alleged injuries and the alleged inadequate warning.  The same lack of causation is fatal to the failure to test claim and demonstrates why they are “inextricably intertwined”:

Had [defendant] performed more testing, the warning may have been more detailed, but the Court has already found there was no causation as a matter of law even assuming an inadequate warning. Summary judgment for one means summary judgment for the other.

Id.  They rise and fall together.  The same is true of design defect.  Plaintiff could argue that more testing may have led to the discovery of a safer alternative design in the future, but she had no evidence to support that conclusion, or that it would have been available at the time of plaintiff’s surgery, or that it would have been approved by the FDA.  The same things that felled plaintiff’s design defect claim likewise, undermined her failure to test claim, such as it were. Id. 

So, at most plaintiff had her experts’ testimony that defendant did not do enough testing.  What she lacked was evidence of a causal link between that deficiency and her alleged injuries.  The lack of testing must have caused something that in turn caused injury to plaintiff.  That “something” is one of the big three – testing that would have led to an improved warning, testing that would have led to an improved design, or (maybe) testing that would have led to discovery in a manufacturing problem.  In other words, failure to test does not stand on its own.