UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen L. Bartlett

v. Civil No. 08-cv-358-JL

Opinion No. 2010 DNH 130

Mutual Pharmaceutical

Company, Inc.

MEMORANDUM OPINION

Defendant Mutual Pharmaceutical Company has moved for

reconsideration of this court’s order denying Mutual’s summary

judgment motion in part and granting it in part. See Bartlett v.

Mut. Pharm. Co., 2010 DNH 112 (“Order”). Mutual argues that 1

this court made a manifest error of law in ruling that Bartlett

could prevail on her strict products liability claim by proving

that the product at issue, the prescription drug Sulindac, was

“defective because its safety risks outweigh its medical

benefits, making it an unreasonably dangerous product,” id. at 23

(footnote omitted), without having to prove that the product had

some other “defect” in design.

While language in the New Hampshire Supreme Court’s opinion

in Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822 (1998),

arguably supports Mutual’s view, its subsequent decision in

Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150

Document no. 243. 1

Case 1:08-cv-00358-JL Document 284 Filed 07/30/10 Page 1 of 13
(2001), expressly holds that a plaintiff can prevail on a strict

products liability claim by proving that a product was

“unreasonably dangerous pursuant to the risk-utility balancing

test,” without also having to prove “a safer, alternative

design,” id. at 157. Mutual’s motion does not address Vautour’s

holding and, indeed, barely mentions the case.

Accordingly, as fully explained infra, Mutual’s motion to

reconsider fails to demonstrate a “manifest error of fact or

law,” L.R. 7.2(e),” or, so far as the court is concerned, any

error at all. The motion is therefore denied.

I. Background

The facts relevant to Mutual’s motion for summary judgment

are set forth throughout the Order and need not be repeated here. 

Essentially, Bartlett claims that she suffered a painful and

life-threatening condition known as Stevens-Johnson

Syndrome/Toxic Epidermal Necrolysis, or “SJS/TEN,” from taking

Sulindac, a generic prescription drug manufactured by Mutual and

prescribed by her doctor. In moving for summary judgment, Mutual

argued principally that it adequately warned the doctor of the

risk of SJS/TEN but that, even if it had not, any failure to warn

was not the cause of Bartlett’s injuries because her doctor

admitted that he had not read Sulindac’s warning label before

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prescribing it to her. Mutual argued that those flaws were fatal

not only to Bartlett’s failure-to-warn claims, but also to her

strict products liability claim based on defective design,

because “the primary allegation [she] relies upon to support [it]

is [her] erroneous contention that Sulindac was defective because

it lacked an adequate warning.”

In support of her strict products liability claim, though,

“Bartlett also alleges that Sulindac is defective because its

safety risks outweigh its medical benefits, making it an 

unreasonably dangerous product”--as this court ultimately

observed in the Order. Thus, following oral argument on Mutual’s

summary judgment motion, the court ordered both parties to brief

whether Bartlett’s inability to prove causation on her failureto-warn claims was also fatal to her strict products liability

claim based on defective design.

Mutual maintained that it was, because “the New Hampshire

Supreme Court would recognize that in actions involving

pharmaceutical products, whether a product is defective in design

turns on whether the product was accompanied by an inadequate

warning.” According to Mutual, that proposition followed from

New Hampshire’s embrace of comment k to the Restatement (Second)

of Torts § 402A (1965), which, Mutual said, provides that “an

unavoidably unsafe product is defective in design only if it is

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not accompanied by a proper warning.” Because “[w]here a product

design cannot be made safer, it is judged by the adequacy of its

warnings,” Mutual argued that a causal link between an allegedly

inadequate warning and the plaintiff’s injury was essential to a

strict liability claim based on an unavoidably unsafe product.

This court accepted Mutual’s premise--that New Hampshire

would not hold the manufacturer of an important and unavoidably

unsafe product strictly liable so long as it was accompanied by

an adequate warning, see Order at 24-25--but rejected Mutual’s

conclusion that Bartlett’s strict liability claim therefore

failed for want of proof that the allegedly inadequate warning

caused her injury, id. at 23-24. Instead, the court ruled, if

Bartlett could prevail at trial on “whether Sulindac is

unreasonably dangerous and whether that defective condition

caused her injuries . . . Mutual might nonetheless be able to

avoid liability for defective design if it can prove, as an

affirmative defense, that Sulindac is unavoidably unsafe and had

an adequate safety warning.” Id. at 26. The court refused to

enter summary judgment for Mutual based on that defense, however,

because “the adequacy of Sulindac’s safety warning is a matter of

genuine dispute on this record.” Id. 

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II. Analysis

As noted above, Mutual now argues that--quite apart from the

adequacy of the warning--Bartlett’s strict products liability

claim fails because she cannot prove “a defect in the product.” 

Proving that Sulindac’s safety risks outweigh its medical

benefits, making it unreasonably dangerous, is not enough, Mutual

maintains. Instead, Mutual says, Bartlett must also prove that 2

Sulindac was “defective”--a concept that Mutual does not attempt

to define, but which it insists cannot be proven here, because

Sulindac “contains a single active ingredient” and therefore

“cannot be made safer, as one would expect of a product

containing a design defect.”

There are a number of problems with this argument, but the

first (and most glaring) is that the New Hampshire Supreme Court

expressly rejected it in Vautour. There, the plaintiffs appealed

from a directed verdict entered against them on their strict

In a footnote, Mutual suggests that Bartlett cannot prove 2

even that, because her expert witnesses “do not compare the

utility of Mutual’s Sulindac to any other medications with

respect to their ability to relieve pain and inflammation or to

treat patients with . . . any other condition” and “have not even

addressed those benefits with respect to Sulindac itself.” 

Because Mutual is not urging reconsideration on this point (and

in fact did not even make this argument in support of its summary

judgment motion), the court need not consider it here--but will

do so at the appropriate point in the proceedings. 

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products liability claim, arguing that “the superior court erred

by requiring them to prove an alternative design as an 

additional element in the case.” 147 N.H. at 153. The

defendant, however, urged the court “to adopt the Restatement

(Third) of Torts § 2(b) (1998), which requires a plaintiff in a

design defect case to prove that the risks of harm posed by the

product could have been reduced or avoided by a reasonable

alternative design.” Id. at 154. The court declined, reasoning

that “while proof an alternative design is relevant in a design

defect case, it should be neither a controlling factor nor an

essential element that should be proved in every case.” Id. at

156. Instead, the court concluded, “the risk-utility test as

currently applied protects the interests of both consumers and

manufacturers in design defect cases.” Id.

Under that test, the court explained, “a product is

defective as designed ‘if the magnitude of the danger outweighs

the utility of the product.’” Id. at 154 (quoting William

Prosser et al., Prosser and Keeton on the Law of Torts § 99, at

699 (5th ed. 1984)). Thus, because the “plaintiffs presented

sufficient evidence that the [product at issue] was unreasonably

dangerous pursuant to the risk-utility balancing test,” the

superior court “erroneously granted the defendant’s motion for

directed verdict upon the plaintiffs’ strict liability, design

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defect claim. Under New Hampshire law, the plaintiffs’ evidence

was sufficient to establish a prima facie case.” Id. at 157.

 Mutual’s argument flies in the face of this explicit

holding, which the motion for reconsideration simply ignores. 

Indeed, its only references to the case, express or implied, are

in (1) a string citation with a parenthetical that describes the

case as “involving [the] question of whether location of safety

stops constituted a defective condition making equipment

unreasonably dangerous” and (2) a footnote that, in what appears

to be a tacit acknowledgment of Vautour, states that “[e]ven

though plaintiff might not be required to establish that a safer

alternative design exists, she must still prove that a defect

exists.” First, while Vautour certainly “involved” the question

of the location of the safety stops on a leg press machine, the

plaintiff presented no evidence that changing the location of the

stops would have prevented his injury. 147 N.H. at 153. The New

Hampshire Supreme Court, however, specifically ruled that no such

evidence was necessary because, again, “the plaintiffs presented

sufficient evidence that the leg press machine was unreasonably

dangerous pursuant to the risk-utility test.” Id. at 157. So

Vautour requires the rejection of Mutual’s argument that, even if

Bartlett can adduce sufficient evidence that Sulindac’s risks

outweigh its benefits, her strict products liability claim still

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fails because she cannot prove that “a change in design would

have avoided the injury” she suffered.

Second, Mutual does not attempt to reconcile its view that a

plaintiff must prove that a product is “defective”--and cannot do

so by proving only that its risks outweigh its benefits--with its

concession that a plaintiff “need not prove that a safer

alternative design exists.” This cries out for an explanation as

to how else a plaintiff proves that a product is defective in

design. Mutual offers none. Vautour, however, does. Again, it

expressly states that “a product is defective as designed if the

magnitude of the danger outweighs the utility of the product.” 

147 N.H. at 154 (quotation omitted). That is precisely how this

court articulated Bartlett’s strict liability claim in the

summary judgment Order--“Sulindac is defective because its safety

risks outweigh its medical risks.” Order at 23. So Mutual’s

request for reconsideration rings hollow, particularly in the

absence of any effort to meaningfully address the Vautour

decision.3

This court also notes that Mutual’s view appears to be 3

inconsistent with comment k of the Restatement (Second) of Torts

§ 402A (1965), which allows manufacturers to avoid strict

liability for defective design if they can prove that their

product is important, unavoidably unsafe, and had an adequate

warning. See Order at 24-26. There would be no need for comment

k if, as Mutual argues, the fact that a product cannot be more

safely designed is itself fatal to a strict products liability

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In fairness to Mutual, the case on which it relies,

Buckingham, did reject the argument that “‘defect’ is not a

‘separate and distinct element of proof’ from the ‘unreasonably

dangerous’ element” in affirming the dismissal of a plaintiff’s

strict products liability claim against cigarette manufacturers. 

142 N.H. at 825. The court reaffirmed that it recognizes “the

tort of strict liability as set out in the Restatement (Second)

of Torts § 402A,” which “imposes liability for selling ‘any

product in a defective condition unreasonably dangerous to the

user or consumer’ when the product causes injury to the user or

consumer.” Id. The court reasoned that if “a product is per se

defective if it is unreasonably dangerous, then it would be

redundant for section 402A to include both the terms ‘defective’

and ‘unreasonably dangerous.’” Id. at 826. The court found

further support for this reading in comment i to § 402A, which

states that it applies “‘only when the defective condition of the

product makes it unreasonably dangerous to the user or consumer’”

and “cites several products, such as tobacco, whiskey, and

claim for defective design under New Hampshire law (regardless of

the product’s importance or the adequacy of its warning). 

Despite the fact that Mutual argued in moving for summary

judgment that “New Hampshire courts evaluate a design defect

claim involving a pharmaceutical product under comment k,” its

motion for reconsideration does not address this apparent

inconsistency or mention comment k.

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butter, that may be dangerous in their intended form . . . but

liability will not be imposed absent an additional ingredient

which the ordinary consumer would not expect to be present.” Id. 

Thus, the court ruled, “because the plaintiff has failed to

allege separately that cigarettes are ‘defective’ and

‘unreasonably dangerous,’ he has failed to state a claim upon

which relief may be granted.” Id. Mutual, however, makes no 4

attempt to reconcile this holding with the New Hampshire Supreme

Court’s subsequent decision in Vautour, which, again,

specifically held that a product is defective if its risks

outweigh its benefits so as to make it unreasonably dangerous. 

147 N.H. at 154. A federal court exercising diversity

jurisdiction over a state-law action, like this court here, “must

apply the most recent statement of state law by the state’s

highest court.” Vitkus v. Beatrice Co., 127 F.3d 936, 941-42

(10th Cir. 1997); see also, e.g., Brunner v. Hampson, 441 F.3d

457, 465 (6th Cir. 2006); Lamarque v. Mass. Indem. & Life Ins.

Co., 794 F.2d 194, 196 (5th Cir. 1986); Middle Atl. Utils. Co. v.

S.M. Dev. Corp., 392 F.2d 380, 384 (2d Cir. 1968); cf. Smith v.

To like effect is the decision by another judge of this 4

court in Gianitsis v. Am. Brands, Inc., 685 F. Supp. 853, 856-57

(D.N.H. 1988) (Loughlin, D.J.), cited by both the New Hampshire

Supreme Court in Buckingham and Mutual here. Like Buckingham,

however, Gianitsis was decided prior to Vautour.

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F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996) (following the

more “recently decided” New Hampshire Supreme Court case that

“speaks directly to the question,” rather than an older opinion). 

Insofar as Buckingham and Vautour are in conflict, then--a point

on which, again, Mutual offers no argument at all --this court 5

must follow Vautour, as the New Hampshire Supreme Court’s more

recent articulation of its strict products liability rule. See

also Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 831

(2005) (“‘a product is defective as designed if the magnitude of

the danger outweighs the utility of the product’”) (quoting

Vautour, 147 N.H. at 154).6

Mutual does not argue, for example, that Buckingham, rather 5

than Vautour, applies here.

Moreover, even assuming (contrary to the express holding of 6

Vautour, as followed in the Order and again here) that New

Hampshire law required Bartlett to prove a safer alternative

design, this court is skeptical of Mutual’s argument, raised

repeatedly throughout this litigation, that because Sulindac is a

single “molecule and the molecule cannot be changed,” no safer

alternative design could possibly exist. See, e.g., Brown v.

Super. Ct., 751 P.2d 470, 478 (Cal. 1988) (expressing “serious[]

doubt” about such an argument, despite ruling as a matter of

California public policy that drug manufacturers should be

shielded from strict liability based on defective design). Even

in such cases, a plaintiff “might be able to prove that other,

less harmful drugs were available to prevent” the indicated

condition (here, for example, other NSAIDs), so “the benefit of

such alternate drugs could be weighed against the advantages of

[the defendant’s drug] in making the risk/benefit analysis.” Id. 

That has been one of Bartlett’s main arguments from the

beginning.

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III. Conclusion

New Hampshire law allows a plaintiff to recover in strict

products liability by showing that a product is defective in

design because its risks outweigh its benefits, and that the

plaintiff suffered injury as a result. See Vautour, 147 N.H. at

154. As our court of appeals has observed, this test applies not

just to “mass-produced items sold over the counter,” but also to

prescription drugs. Brochu v. Ortho Pharm. Corp., 642 F.2d 652,

655 (1st Cir. 1981) (applying New Hampshire law). That is the

law this court applied in the summary judgment Order, and will

continue to apply here. For the foregoing reasons, Mutual’s

motion for reconsideration is DENIED. 7

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: July 30, 2010

cc: Keith M. Jensen, Esq.

Bryan Ballew, Esq.

Patrick J. O’Neal, Esq.

Eric Roberson, Esq.

Christine M. Craig, Esq.

Timothy P. Beaupre, Esq.

Document no. 263. 7

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Joseph P. Thomas, Esq.

Paul J. Cosgrove, Esq.

Jeffrey D. Geoppinger, Esq.

Linda E. Maichl, Esq.

Stephen J. Judge, Esq.

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