UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen L. Bartlett

v. Civil No. 08-cv-00358-JL

Mutual Pharmaceutical

Company, Inc.

SUMMARY ORDER

Defendant Mutual Pharmaceutical Company has moved for

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

motion for reconsideration of this court’s summary judgment

ruling. See Bartlett v. Mut. Pharm. Co., 2010 DNH 112 (summary

judgment ruling); Bartlett v. Mut. Pharm. Co., 2010 DNH 130

(denying Mutual’s first motion for reconsideration). For the

reasons discussed at length in those orders, at the final pretrial conference (see documents no. 301 and 302), and below,

Mutual’s motion is denied.

Although Mutual claims that “[m]erely because a product is

[unreasonably] dangerous does not, under New Hampshire law, mean

it is defective,” the two most recent decisions from the New

Hampshire Supreme Court on this point expressly state that “a

product is defective as designed if the magnitude of the danger

outweighs the utility of the product.” Vautour v. Body Masters

Sports Indus., Inc., 147 N.H. 150, 154 (2001) (quoting William

Case 1:08-cv-00358-JL Document 336 Filed 08/12/10 Page 1 of 4
Prosser et al., Prosser and Keeton on the Law of Torts § 99, at

699 & n.30 (5th ed. 1984)); Kelleher v. Marvin Lumber & Cedar

Co., 152 N.H. 813, 831 (2005). This court is bound to follow the

plain meaning of those statements, notwithstanding any language

arguably to the contrary in the earlier case of Buckingham v.

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

Moreover, Vautour and Kelleher expressly state that “the

plaintiff is not required to present evidence of a safer

alternative design” in a defective design case. Kelleher, 152

N.H. at 831 (2005); see also Vautour, 147 N.H. at 156. The

question remains as to how, under Mutual’s reading of Buckingham

and Vautour/Kelleher, a plaintiff could prove a “defect” without

proving some alternative design. In its motion, Mutual gave a

circular answer: that “to respond to the Court’s call for an

explanation, a plaintiff may prove a defect in a product’s design

by producing evidence that a particular aspect of the product is

defective.” When pressed at the pre-trial conference, Mutual

gave an unhelpful answer: “there has to be an alternative

[design]; you just don’t have to prove up the alternative.” 

Proof, though, is all that counts here.

Vautour and Kelleher provide a much simpler answer to this

court’s question: a plaintiff may prove a defect by showing that

the product’s risks outweigh its benefits, making it unreasonably

dangerous to consumers. That is the law this court followed in

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its earlier orders, and will continue to follow here and at the

upcoming trial.1

As a final note, Mutual acknowledged at the pre-trial

conference that its reading of Buckingham and Vautour/Kelleher

would have the practical effect of immunizing nearly all drug

manufacturers from strict liability, no matter how dangerous the

drug, no matter how minimal its benefits, no matter what its

warning said (unless the prescribing doctor read and relied on

the warning), and even if other, similar drugs offer the same

benefits with less risk. While that result may be defensible on 2

public policy grounds, see Brown v. Super. Ct., 751 P.2d 470

(Cal. 1988), it is not this court’s place to announce it as the

public policy of New Hampshire, especially in the face of Vautour

and Kelleher.

Because Mutual has not demonstrated that this court’s order

denying its earlier motion for reconsideration “was based on a

Moreover, even if Bartlett had to prove an alternative 1

design, this court is skeptical of Mutual’s argument that she

cannot do so by showing that other non-steroidal antiinflammatory drugs (“NSAIDs”) offer the same benefits as Sulindac

with less or no risk of Stevens-Johnson syndrome/toxic epidermal

necrolysis (“SJS/TEN”). See Bartlett, 2010 DNH 130, at 11 n.6. 

That additional, unnecessary, and unexpected risk of SJS/TEN is,

in Vautour’s terminology, what Bartlett alleges is “wrong” with

the product. 142 N.H. at 826.

The only exception, in Mutual’s view, would be drugs whose 2

dosage or other design features could be altered to reduce or

eliminate the unreasonable danger, as in Brochu v. Ortho. Pharm.

Corp., 642 F.2d 652 (1st Cir. 1981).

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manifest error of fact or law,” L.R. 7.2(e), Mutual’s motion for

reconsideration is DENIED. 3

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: August 12, 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.

Joseph P. Thomas, Esq.

Paul J. Cosgrove, Esq.

Jeffrey D. Geoppinger, Esq.

Linda E. Maichl, Esq.

Stephen J. Judge, Esq.

Pierre A. Chabot, Esq.

Document no. 293. 3

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