Litigation: 6 defenses every inside counsel should know (Part 3)

Inside the Learned Intermediary Rule and how it can be applied

This is the third of a six-part series on liability defenses that every inside counsel should know (Part 1 and Part 2). Based on more than 30 years of litigation practice, this series discusses the liability defenses I have found to most often result in successful summary judgments or dismissals, providing the best potential to end expensive and time-consuming litigation. This installment focuses on the learned intermediary rule.

In general, manufacturers have a duty to warn end users about the known hazards associated with use of their products. The learned intermediary rule provides an exception to this general duty. Under the learned intermediary rule, a product manufacturer’s duty to warn about a known hazard runs to an intermediary instead of to the end user of the product. The rule usually applies in circumstances where the intermediary is in the best position to provide warnings to the product’s end users, or when there is a significant burden to the product manufacturer to provide a direct warning. The intermediary rule can be used by a product manufacturer to obtain summary judgment or dismissal of a failure to warn lawsuit filed by the end user of a product if appropriate warnings were provided to an intermediary, such as the employer of the end user, or if it can be shown that the intermediary knew the product’s hazards.

Contributing Author

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Jonathan B. Shoebotham

Attorney Jonathan B. Shoebotham is a partner in the Houston office of Thompson & Knight, where he leads the firm’s Complex Tort and...

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