inadequate warning in Texas

2002They assumed that the Aspire’s warnings were inadequate, but they relied on General Motors Corporation v. Saenz, 873 S.W.2d 353, 357 (Tex.1993), and Gillespie v. Century Products Company, 936 S.W.2d 50, 52 (Tex.App.-San Antonio 1996, no writ), for an argument that the failure to provide an adequate warning could not have been the cause of Philip’s injury because, if the Chandlers had followed the inadequate warning, the Chandlers would have prevented the injury to Philip.

1994Euphemistically declaring that this presumption "operates differently" for an inadequate warning, 873 S.W.2d at 359, the majority really means that the presumption no longer "operates" at all in this situation.

2011Co. v. Davalos, 140 S.W.3d 685, 689 (Tex.2004) (holding that the alleged conflict of interest between the insured and the insurer over the best venue for the action did not destroy the insurer’s right of control but noting that an insured “may rightfully refuse an inadequate defense and may also refuse any defense conditioned on an unreasonable, extra-contractual demand that threatens the insured’s independent legal rights.”).

2011Co. v. Davalos , 140 S.W.3d 685, 689 (Tex. 2004) (holding that the alleged conflict of interest between the insured and the insurer over the best venue for the action did not destroy the insurer’s right of control but noting that an insured “may rightfully refuse an inadequate defense and may also refuse any defense conditioned on an unreasonable, extra-contractual demand that threatens the insured’s independent legal rights.”).

2012Even assuming that the Hamil-tons presented sufficient evidence to show that Centocor’s warning to Patricia’s prescribing physicians was inadequate, the Hamiltons still had to prove that the inadequate warning was the producing cause of Patricia’s injuries. 31 See, e.g., Jacobs, 480 S.W.2d at 605-06 ; Medrano, 28 S.W.3d at 94-95 ; Rolen, 856 S.W.2d at 609 ; Stewart, 780 S.W.2d at 911 .

1980In Technical Chemical Company v. Jacobs, supra, the inadequate warning resulted in the “product” exploding “like a stick of dynamite.” In Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., 514 S.W.2d 429 (Tex.1974) the lack of warning resulted in the user’s addiction to the manufacturer’s drug.

2015A quick review of the findings of fact and conclusions of law clearly reveals an inadequate analysis under Strickland v. Washington, 466 U.S. 668 (1984).

2008We apply a two-pronged test to ineffective assistance of counsel claims.32 First, appellant must show that counsel’s performance was deficient, which requires showing that counsel made such serious errors that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment.33 Counsel’s performance is deficient only if it fell below an objective standard of reasonableness measured by prevailing professional norms.34 The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. 35 Our scrutiny of counsel’s performance mus

1994LESHER, PRODUCTS LIABILITY § 204, at 220 (1979); see also Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 87 (4th Cir.1962) ("[W]here the manufacturer is obligated to give an adequate warning of danger the giving of an inadequate warning is as complete a violation of its duty as would be the failure to give any warning.").

1994As the court in Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 87 (4th Cir.1962), concluded in upholding the responsibility of a product manufacturer for the death of a child despite the mother's failure to read an inadequate warning: [H]ad the warning been in a form calculated to attract the user's attention, due to its position, size, and the coloring of its lettering, and had the words used therein been reasonably calculated to convey a conception of the true nature of the danger, this mother might not have left the product in the presence of her child.

2021The consent requirement in the UIM policy protects the insurer from a default judgment or an inadequate defense by the underinsured motorist.25 A consenting insurer forfeits that protection no pet.) (mem. op.) (“[I]t is for the trial court, not the jury, to decide what sorts of damages a litigant is legally entitled to recover.”). 24 See In re Koehn, 86 S.W.3d 363, 368 (Tex. App.—Texarkana 2002, orig. proceeding) (articulating the different options an insured has to obtain UIM benefits). 25 In re Reynolds, 369 S.W.3d 638, 655 (Tex. App.—Tyler 2012, orig. proceeding) (“[T]he purpose of requirin

2021The consent requirement in the UIM policy protects the insurer from a default judgment or an inadequate defense by the underinsured motorist.25 A consenting insurer forfeits that protection no pet.) (mem. op.) (“[I]t is for the trial court, not the jury, to decide what sorts of damages a litigant is legally entitled to recover.”). 24 See In re Koehn, 86 S.W.3d 363, 368 (Tex. App.—Texarkana 2002, orig. proceeding) (articulating the different options an insured has to obtain UIM benefits). 25 In re Reynolds, 369 S.W.3d 638, 655 (Tex. App.—Tyler 2012, orig. proceeding) (“[T]he purpose of requirin

2021The consent requirement in the UIM policy protects the insurer from a default judgment or an inadequate defense by the underinsured motorist.25 A consenting insurer forfeits that protection no pet.) (mem. op.) (“[I]t is for the trial court, not the jury, to decide what sorts of damages a litigant is legally entitled to recover.”). 24 See In re Koehn, 86 S.W.3d 363, 368 (Tex. App.—Texarkana 2002, orig. proceeding) (articulating the different options an insured has to obtain UIM benefits). 25 In re Reynolds, 369 S.W.3d 638, 655 (Tex. App.—Tyler 2012, orig. proceeding) (“[T]he purpose of requirin

2012See, e.g., Stewart, 780 S.W.2d at 912 ; Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex.App.-Fort Worth 2007, no pet.); see also Ebel, 536 F.Supp.2d at 780 (“[W]here the physicians were unequivocal that new information about the risks would not have changed their decision to prescribe the medication, an inadequate warning was not the proximate cause of plaintiffs injury,” and “where a physician testifies that he was aware of the risks of which plaintiff complains, it is then the plaintiffs burden to prove that a different warning would have changed the physician’s decision to pre

2012See, e.g., Stewart, 780 S.W.2d at 912 ; Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex.App.-Fort Worth 2007, no pet.); see also Ebel, 536 F.Supp.2d at 780 (“[W]here the physicians were unequivocal that new information about the risks would not have changed their decision to prescribe the medication, an inadequate warning was not the proximate cause of plaintiffs injury,” and “where a physician testifies that he was aware of the risks of which plaintiff complains, it is then the plaintiffs burden to prove that a different warning would have changed the physician’s decision to pre

2012Even assuming that the Hamil-tons presented sufficient evidence to show that Centocor’s warning to Patricia’s prescribing physicians was inadequate, the Hamiltons still had to prove that the inadequate warning was the producing cause of Patricia’s injuries. 31 See, e.g., Jacobs, 480 S.W.2d at 605-06 ; Medrano, 28 S.W.3d at 94-95 ; Rolen, 856 S.W.2d at 609 ; Stewart, 780 S.W.2d at 911 .

2012Cf. McNeil v. Wyeth, 462 F.3d 364, 373 (5th Cir.2006) (“Where the physician would have adequately informed a plaintiff of the risks of a disease, had the label been sufficient, but fails to do so on that account, and where the plaintiff would have rejected the drug if informed, the inadequate labeling could be a ‘producing’ cause of the injury, because it effectively sabotages the function of the intermediary.”).

2012See, e.g., Stewart, 780 S.W.2d at 912 ; Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex.App.-Fort Worth 2007, no pet.); see also Ebel, 536 F.Supp.2d at 780 (“[W]here the physicians were unequivocal that new information about the risks would not have changed their decision to prescribe the medication, an inadequate warning was not the proximate cause of plaintiffs injury,” and “where a physician testifies that he was aware of the risks of which plaintiff complains, it is then the plaintiffs burden to prove that a different warning would have changed the physician’s decision to pre

2012See, e.g., Stewart, 780 S.W.2d at 912 ; Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex.App.-Fort Worth 2007, no pet.); see also Ebel, 536 F.Supp.2d at 780 (“[W]here the physicians were unequivocal that new information about the risks would not have changed their decision to prescribe the medication, an inadequate warning was not the proximate cause of plaintiffs injury,” and “where a physician testifies that he was aware of the risks of which plaintiff complains, it is then the plaintiffs burden to prove that a different warning would have changed the physician’s decision to pre

2008We apply a two-pronged test to ineffective assistance of counsel claims.32 First, appellant must show that counsel’s performance was deficient, which requires showing that counsel made such serious errors that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment.33 Counsel’s performance is deficient only if it fell below an objective standard of reasonableness measured by prevailing professional norms.34 The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. 35 Our scrutiny of counsel’s performance mus

2005Co., 824 F.2d 409, 413-14 (5th Cir.1987) (applying Mississippi law in stating that negligence and strict liability theories “each present the essential question whether an inadequate warning caused the plaintiff’s injuries”); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986) (“Most Circuits have ... held that there is no practical difference between strict liability and negligence in defective design cases...."); Birchfield v. Int’l Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984) (“In a defective design case ... the test for an 'unreasonably dangerous’ condition is equivalent to a neg

2005Motors Corp., 942 F.Supp. 869, 874 (W.D.N.Y.1996) ("In a design defect case the two theories of liability [strict liability and negligence] are virtually identical.”); Mather v. Caterpillar Tractor Corp., 23 Ariz.App. 409 , 533 P.2d 717, 719 (1975) (upholding ruling that withheld negligence count from jury on grounds that it would be “superfluous" and confusing if included with strict liability count); Lambert v. Gen.

2005Motors Corp., 942 F.Supp. 869, 874 (W.D.N.Y.1996) ("In a design defect case the two theories of liability [strict liability and negligence] are virtually identical.”); Mather v. Caterpillar Tractor Corp., 23 Ariz.App. 409 , 533 P.2d 717, 719 (1975) (upholding ruling that withheld negligence count from jury on grounds that it would be “superfluous" and confusing if included with strict liability count); Lambert v. Gen.

2005Co., 824 F.2d 409, 413-14 (5th Cir.1987) (applying Mississippi law in stating that negligence and strict liability theories “each present the essential question whether an inadequate warning caused the plaintiff’s injuries”); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986) (“Most Circuits have ... held that there is no practical difference between strict liability and negligence in defective design cases...."); Birchfield v. Int’l Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984) (“In a defective design case ... the test for an 'unreasonably dangerous’ condition is equivalent to a neg

2005Motors Corp., 942 F.Supp. 869, 874 (W.D.N.Y.1996) ("In a design defect case the two theories of liability [strict liability and negligence] are virtually identical.”); Mather v. Caterpillar Tractor Corp., 23 Ariz.App. 409 , 533 P.2d 717, 719 (1975) (upholding ruling that withheld negligence count from jury on grounds that it would be “superfluous" and confusing if included with strict liability count); Lambert v. Gen.

2005Co., 824 F.2d 409, 413-14 (5th Cir.1987) (applying Mississippi law in stating that negligence and strict liability theories “each present the essential question whether an inadequate warning caused the plaintiff’s injuries”); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986) (“Most Circuits have ... held that there is no practical difference between strict liability and negligence in defective design cases...."); Birchfield v. Int’l Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984) (“In a defective design case ... the test for an 'unreasonably dangerous’ condition is equivalent to a neg

2005Co., 824 F.2d 409, 413-14 (5th Cir.1987) (applying Mississippi law in stating that negligence and strict liability theories “each present the essential question whether an inadequate warning caused the plaintiff’s injuries”); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986) (“Most Circuits have ... held that there is no practical difference between strict liability and negligence in defective design cases...."); Birchfield v. Int’l Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984) (“In a defective design case ... the test for an 'unreasonably dangerous’ condition is equivalent to a neg

2005Co., 824 F.2d 409, 413-14 (5th Cir.1987) (applying Mississippi law in stating that negligence and strict liability theories “each present the essential question whether an inadequate warning caused the plaintiff’s injuries”); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986) (“Most Circuits have ... held that there is no practical difference between strict liability and negligence in defective design cases...."); Birchfield v. Int’l Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984) (“In a defective design case ... the test for an 'unreasonably dangerous’ condition is equivalent to a neg

2005DaimlerChrysler relies on Blackwell Burner Company, Inc. v. Cerda, 644 S.W.2d 512, 516 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.), for its contention that when a product user is actually aware of a product's dangers, even an inadequate warning cannot be the producing cause of the claimant's injuries.

2005DaimlerChrysler relies on Blackwell Burner Company, Inc. v. Cerda, 644 S.W.2d 512, 516 (Tex.App.-San Antonio 1982, writ réf d n.r.e.), for its contention that when a product user is actually aware of a product’s dangers, even an inadequate warning cannot be the producing cause of the claimant’s injuries.

2002They assumed that the Aspire’s warnings were inadequate, but they relied on General Motors Corporation v. Saenz, 873 S.W.2d 353, 357 (Tex.1993), and Gillespie v. Century Products Company, 936 S.W.2d 50, 52 (Tex.App.-San Antonio 1996, no writ), for an argument that the failure to provide an adequate warning could not have been the cause of Philip’s injury because, if the Chandlers had followed the inadequate warning, the Chandlers would have prevented the injury to Philip.

1996See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Hamer v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); W.

1996See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Hamer v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); W.

1994If Technical Chemical requires that the jury decide causation where an inadequate warning goes unread, then why does the majority today take the causation issue away from the jury? [15] See, e.g., Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 459-67 (Tex.1993) (Doggett, J., concurring and dissenting); Boyles v. Kerr, 855 S.W.2d 593, 609-10, 616 (Tex.1993) (Doggett, J., dissenting); May v. United Serv.

1994See, e.g., Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 459-67 (Tex.1993) (Doggett, J., concurring and dissenting); Boyles v. Kerr, 855 S.W.2d 593, 609-10, 616 (Tex.1993) (Doggett, J., dissenting); May v. United Serv.

1994If Technical Chemical requires that the jury decide causation where an inadequate warning goes unread, then why does the majority today take the causation issue away from the jury? [15] See, e.g., Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 459-67 (Tex.1993) (Doggett, J., concurring and dissenting); Boyles v. Kerr, 855 S.W.2d 593, 609-10, 616 (Tex.1993) (Doggett, J., dissenting); May v. United Serv.

1994See, e.g., Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 459-67 (Tex.1993) (Doggett, J., concurring and dissenting); Boyles v. Kerr, 855 S.W.2d 593, 609-10, 616 (Tex.1993) (Doggett, J., dissenting); May v. United Serv.