The following case demonstrates the importance of having some very basic evidence to back up your product liability claim. In In re Darvocet, the injured party, Judith Schiller, filed a claim stating that she had been harmed by ingesting prescription medication containing propoxyphene. Although she initially filed the case in federal court in New Jersey, it was moved to Kentucky for pre-trial proceedings.
The defendant, Xanodyne Pharmaceuticals, filed a motion for summary judgment on the grounds that Schiller failed to provide evidence that her injury was caused by ingesting the pharmaceutical company's specific drug. Schiller failed to file an opposition to the motion.
The federal court noted that the threshold requirement for product liability under both Kentucky and New Jersey law was that the plaintiff assert that the defendant's product caused the injury. A defendant cannot be held responsible for an injury caused by a product it did not sell, manufacture, or otherwise supply to the plaintiff.
In this case, though Schiller claimed to have received products containing propoxyphene from September 2003 through March 2010, there was no evidence to suggest a link between those products and Xanodyne Pharmaceuticals. The pharmacy records did not identify any Xanodyne Pharmaceuticals product ingested by Schiller, and Schiller's responses to the Plaintiff Fact Sheet did not identify Xanodyne Pharmaceuticals as the manufacturer or seller of any product she ingested. As Schiller never filed a response with counter-evidence to support her claims, the court noted that Schiller failed to meet her burden of evidence in the case.
The court found that Schiller also failed to meet the burden of evidence on her misrepresentation claim. Whether Xanodyne Pharmaceuticals made a misrepresentation depended upon it having a duty to Schiller in the first place. Since Schiller could not provide evidence that she used its product, Xanodyne Pharmaceuticals had no duty. The court therefore granted the defendant's summary judgment motion and the case was dismissed.
Without knowing more details, it is difficult to know why Schiller would file a complaint without having facts that showed a connection to Xanodyne Pharmaceuticals. It could be that Schiller recalled that she had ingested and been harmed by propoxyphene and wanted to assert her claim before the statute of limitations expired in her state (in New Jersey, the statute of limitations is two years from the date of injury, and Schiller filed the complaint in 2012 after last taking the medication in 2010). She may not have held onto her medical records, and thus could not verify whether Xanodyne Pharmaceuticals was the manufacturer. During the discovery phase, she may have realized that the manufacturer was, in fact, a different company, and therefore decided to not contest the Xanodyne Pharmaceuticals motion for summary judgment.
Miller & Falkner is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need a Kentucky personal injury attorney, contact us today for a free consultation.