Atkinson v. Luitpold ' Part III

• Published date: 01 October 2020
• Law Firm: Reed Smith
• Author: Ms Michelle Yeary

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...