holding that the standard of care applicable to a reasonable pharmaceutical company marketing product after minimum testing and without a warning does not entail specialized knowledge or skill "unique to a scientific discipline and beyond the knowledge and experience of the average jury"
How later courts described this case
- holding that the standard of care applicable to a reasonable pharmaceutical company marketing product after minimum testing and without a warning does not entail specialized knowledge or skill "unique to a scientific discipline and beyond the knowledge and experience of the average jury"
- finding a jury could reasonably have concluded that manufacturer’s representations regarding a medical device — including that it could “prevent pregnancy without producing any general effects on the body, blood or brain” — could constitute an express warranty
- holding that the physician who included the cost of an intrauterine contraceptive device in the fee for his insertion of the device was a “seller” under the Uniform Commercial Code
- suggesting as a safeguard against "overkill" that a jury in a bifurcated proceeding could consider "the amount of any unsatisfied or satisfied past punitive awards as well as the past and present financial condition of the defendant"
Written by the judges who cited it.
The opinion
ROVIRA, Justice,
dissenting:
I join with the Chief Justice in his dissent, except for that part in which he expresses agreement with the majority that “punitive damages are recoverable in connection with a strict liability claim founded on section 402A of Restatement (Second) of Torts.” Dissent at 225.
In 1976 this court unanimously adopted section 402A in Hiigel v. General Motors, 190 Colo. 57 , 544 P.2d 983 (1976). We held that a manufacturer’s strict tort liability did not rest upon the normal rules of foreseeability, but upon the concept of enterprise liability for placing a defective product into the stream of commerce. We noted with approval the concept that strict tort liability shifts the focus from the conduct of the manufacturer to the nature of the product.
In addition, the court concluded that the doctrine of strict liability covered damage to the product sold as well as injuries to persons and property. This extension of strict liability was decided by a divided court. In his dissenting opinion, Justice Lee, joined by Justices Kelley and Erickson, argued that remedies available to the plaintiff were better left “to the UCC warranty provisions .... ” I read Justice Lee’s dissenting opinion to mean that since the legislature had already provided a remedy, the court should not ignore that act and establish a different judicial remedy.
In 1977 the legislature responded to judicial adoption of strict liability in product liability cases by adopting sections 13-21-401 to -406, 6 C.R.S. (1983 Supp.), and sections 13-80-127.5 and -127.6, 6 C.R.S. (1983 Supp.). These statutory provisions *228 defined product liability actions and the doctrine of strict liability, established certain presumptions, and provided for a limitation of actions against manufacturers, sellers, or lessors.
Today, the court adopts yet another judicial extension of the principles of strict liability. It applies the remedy of punitive damages to the perceived legal void created by the failure of strict liability to adequately punish those who market a product in disregard of consumer safety. In support of its decision, the court speculates that because the magnitude of cost to the offending party is uncertain, punitive damages will affect a manufacturer’s decision to introduce a product in the marketplace, whereas if punitive damages were predictably certain, they would simply become another cost of doing business and thereby induce a reluctance on the part of the manufacturer to sacrifice profit by removing a correctible defect. At 218.
My disagreement with the majority on this issue starts out with its rejection of the difference between punitive damages and fault, and strict liability and no-fault. I believe that in a strict liability context, where the focus is on the nature of the product, punitive damages are not appropriate. However, more important than my disagreement as to whether punitive damages should be applicable in a strict liability claim is my view that adoption of such a remedy is an issue of public policy which should be decided by the legislature and not by judicial legislation.
The problems which arise from the application of punitive damages in strict liability cases are substantial and require the benefit of extensive research into the economic and social implications of such a decision. A few of the issues which come to mind are: the financial impact on defendants and industries subject to such awards; the number of times punitive damages can be awarded for the same defect; the relationship of punitive damages to compensatory damages; the effect of such awards on consumers; and the social desirability of allowing one litigant to retain the entire punitive damage award rather than placing the award in a fund for others who might be injured. Suggesting some of the important issues which might appropriately be considered by the legislature only serves to highlight the variety of interrelated problems which are better suited for legislative rather than judicial action.
Product liability law has developed at an ever increasing rate, and lawsuits in which claims for punitive damages have been added to claims for compensatory damages have increased at an exponential rate. This court has not had the benefit of public hearings and the advice of experts in order to arrive at a reasoned judgment as to whether punitive damages should be allowed in strict liability litigation. Until such time as the legislature acts, either permitting, denying, or authorizing such a remedy under limited circumstances, I would not impose another judicial remedy on the judicially adopted doctrine of strict liability in product liability cases.