A federal court in Virginia has ruled that a pain pump manufacturer has a post-sale duty to warn under state law. In that case, the Plaintiff alleged he suffered injuries caused by the use of a “pain pump” to deliver pain medications following surgery. The Plaintiff sued the Defendants – who designed, manufactured and sold the device – for allegedly failing to provide adequate warnings that the pump was not safe to use. The Defendants contended that the claim was based on a post-sale duty to warn, and therefore should be dismissed because this cause of action is not recognized in Virginia.
But the U.S. District Court determined that the Virginia Supreme Court “would allow a cause of action based on a negligent breach of a post-sale duty to warn to proceed.” The Court wrote in its order
[I]f a reasonable person in the seller’s position would provide a warning after the time of sale, a product seller or distributor who fails to provide such a warning may be liable for any resulting harm. To satisfy this reasonable person test, the Plaintiff must prove: (1) that the seller knew or should have known of the substantial risk posed by the product, (2) that those who should have been warned were identifiable and were ignorant of the risk, (3) that the seller could have effectively warned the consumer and that the consumer could have acted on that warning, and (4) that the risk of harm outweighed the cost incurred from providing a warning.
Source: Lawyers USA
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