ACADEMIC PHYSICIAN
LIFE CARE PLANNING LLC
California / Texas / Florida

PRODUCT LIABILITY: BREACH OF WARRANTY

Fact Pattern:

Vassallo underwent breast implant surgery in 1977. Fifteen years later, she underwent a mammogram after suffering from chest pains under her left armpit. The mammogram showed that the breast implants had possibly ruptured. The silicone gel implants were removed and replaced with saline implants. During the surgery, the surgeon noted severe, permanent scarring of Vassallo’s pectoral muscles that was attributed to the silicone gel. The left implant had ruptured and the right had several pinholes through which the silicon could escape. During trial, evidence indicated that by 1977, Heyer-Schulte, the manufacturer, knew its implants were not consistent as far as durability or destructibility. Heyer did not warn of the consequences of gel migration in the body, also, Heyer-Schulte conducted few animal and no clinical studies regarding the safety of its silicone gel implants. While Heyer-Schulte did furnish warnings to doctors, they did not
address the possibility of gel bleed, ruptures or the consequences of silicon gel escaping into the body. Vassallo stated that if she had known that the implants could cause permanent scarring, chronic inflammation, and problems to her immune system, she would not have gone ahead with the procedure.

Question

Is a manufacturer liable under the implied warranty of merchantability for failure to warn or to provide instructions about the risks that were not reasonably foreseeable at the time of sale or could not have been reasonably discovered through reasonable testing prior to the marketing of the product?

Rule

A manufacturer will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product.

Discussion

There are two main ways in which a seller of goods may be liable under a warranty theory when the item causes injuries:

Express warranty: Under Article 2 of the Uniform Commercial Code, Section 2-313, if a seller makes specific representations about the qualities of a product, and the buyer is injured due to the failure of the good to fulfill those representations, the buyer may sue for this breach of warranty. A defendant’s liability for breach of an express warranty if in reality a kind of strict liability (liability without regard to fault).

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