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Cok Kinzler PLLP

What is Comment K?

Your willingness to use manufactured products is likely because of the assumption that their makers put a great deal of thought into their design and safe usage. Unfortunately, as many in Bozeman may have sadly learned, that is not always the case. Product recalls are constantly issued after defects in their design have proven to be harmful to consumers. Yet can you make a claim that a product has a design defect if it is already considered to present inherent risks?

Medications, for example, are designed to suppress or stimulate reactions within your body in order to control or combat pain and/or illness. By doing, this, however, they can also generate unwanted (and potentially dangerous) side effects. The pharmaceutical companies that manufacture drugs are often able to avoid liability claims by citing Comment K from the Restatement (Second) of Torts. This principle (as shared by the Louisiana State University Law School) recognizes the existence of unavoidably unsafe products. In reference to medications in particular, it implies that even when a product comes with a potential risk, the use of it is justified to avoid the consequences of what may happen otherwise. Provided that the product is properly made and offered with usage directions and warnings, it cannot be considered defective or unreasonably dangerous.

Recently, however, the attitude towards holding drug manufacturers responsible for harm done to users has shifted based off consumer expectations. The bar for determining liability in such cases may now be set at showing whether you would expect to experience harm in the way that you did if you did indeed heed the directions and warnings offered by a drug manufacturer. If you did, yet were still hurt, the assumption may be that the problem is due to a design defect with the drug itself.

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