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Sanofi : SDNY Rejects Fraud and Manufacturing Claims in Fertility Drug Lawsuit, However Confuses and Conflates the Rest

08/28/2015 | 05:00pm US/Eastern

Sullivan v. Aventis, Inc., offers a crabbed reading of Bartlett to support its stubborn refusal to expand that case's generic preemption to brandeds, it conflates design defect and warning theories, and its reasoning often seems incomplete or incoherent.

The Sullivan case was brought by a woman who claimed that she suffered birth defects because her mother had taken an allegedly defective fertility drug. She alleged that the drug's half-life was too long and that the manufacturer had failed to supply the requisite warnings.

New York law does not smile upon claims that boil down to an assertion that had things not gone wrong, a baby would not have been born, because the pregnancy would never have happened or because the parents would have terminated the pregnancy if they learned of the birth defects. Any “injury” suffered by the children “would require resolving the philosophical or theological 'mystery' of whether 'nonexistence' is preferable to existence.

The legal claims included design defect, manufacturing defect, failure to warn, misrepresentation, breach of express and implied warranties, and unjust enrichment.

The Sullivan court escapes this logic the same way a squid escapes danger: by emitting a lot of confusing ink. The Sullivan court discussed New York's risk-utility test for design defect, and then pointed out that manufacturers can avoid liability by strengthening the product's warning label.

All rights are reserved for National Iraqi News Agency / NINA

(c) 2015 Provided by SyndiGate Media Inc. (Syndigate.info)., source Middle East & North African Newspapers

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