To say that we’re not big fans of the “consumer expectation” test in prescription medical product liability litigation is a gross understatement.  That supposed “test” for design defect – the Third Restatement expressly ditched it as a separate test, Restatement (Third) of Torts, Products Liability §2, comment g (1998) – exists primarily to let plaintiffs claim they never expected that any product would ever injure them, no matter how badly they misused it.  So again and again, we’ve decried the consumer expectation “test” on the Blog.

But at least in some states, the learned intermediary rule ameliorates the consumer expectation test in our sandbox – by considering the relevant “consumer” to be the physician to whom a drug or device warning is directed.  Generally speaking, consumers of prescription medical products lack any expectations about the performance and safety of those products other than what their physicians tell them.  Thus, quite a few courts have held that, in the context of prescription medical products, the physician is actually the “consumer” or the “intended user” of such products.  Continue Reading Learned Consumer Expectations