In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned with design defect claims protects manufacturers and other sellers from liability as long as a reasonable health-care provider would prescribe their product to some class of patients. Section 6(d), which deals with the duty to warn, permits manufacturers of prescription drugs and medical devices to satisfy their duty to warn, at least in most instances, by communicating the warning to the prescribing physician rather than the patient. In other words, section 6(d) retains the traditional "learned intermediary" rule.
Although I agree with Professor Phillips that a manufacturer should not always avoid liability for defective design by proving that it provided an adequate warning, I have serious doubts about the wisdom of adopting a sweeping rule such as the one set forth in comment l. In my opinion, comment l's approach is economically inefficient and undercuts the moral values of individual autonomy and personal responsibility. There is simply no social or economic benefit to be gained by giving large damage awards to product users who fail to follow simple instructions or heed clear warnings.
I also disagree with Professor Phillips' view of section 6 of the Third Restatement. I believe that the Third Restatement's approach in section 6(c), which gives broad protection to manufacturers of prescription drugs and medical devices, is the correct one even though it leaves injured consumers with less protection than they might otherwise have. I also believe that section 6(d)'s retention of the learned intermediary rule is sensible and I find the Reporters' policy justifications for retaining the rule to be persuasive.
Richard C. Ausness, When Warnings Alone Won’t Do: A Reply to Professor Phillips, 26 N. Ky. L. Rev. 627 (1999).