Conk praises the general product-design standard adopted by the Restatement, which predicates liability for almost all nonprescription products upon proof that a reasonable alternative design could have been adopted that would have avoided or reduced harm to the plaintiff.
In short, the Restatement is quite correct in treating prescription drug designs differently from other product designs, although it does not treat them as differently as Conk supposes.
Conk focuses his critique of the Restatement on section 6(c), which sets out the standard to be applied for defective drug design.
Conk asserts that, under section 6(c), "if the medical product does more harm than good for at least one class of users, it will not be considered defective.
11) Conk argues that this RAD-based standard, generally applicable to nonprescription products, should also apply to prescription drugs and medical devices.
Conk supports his argument that prescription drug designs are the same as other product designs, and thus should be measured by the general RAD-based standard, with what he views to be the unfortunate results of the litigation arising from use of hepatitis-infected blood during the late 1970s and early 1980s.
We submit that, when one objectively considers the relevant data relating to the new Restatement's meaning, Conk has read it wrong.
Conk reads the prescription drug design provision in section 6(c) to prevent plaintiffs from establishing defect by showing that a safer alternative to a defendant's drug was available.
20) This second sentence conjures the appropriate image of responsible prescribing physicians deciding what is best for their patients among available alternatives--not the distorted image that Conk reads into section 6(c) of a health-care provider acting with blinders firmly in place.
In fact, section 6(c) must have been intended to allow reasonable alternatives to be considered by the hypothetical prescribing physicians, because the blinders Conk reads into section 6(c), by forcing those physicians needlessly to harm many of their hypothetical patients, would otherwise constitute a gratuitous insult to the medical profession.
That the drafters of section 6(c) should not be read to have intended what Conk reads into that section is clear when its language and comments are placed in the context of contemporary analyses of drug design liability written and published by the drafters.
Some of their famous clashes included Fullerton's wedding, where hundreds of Conks threw bottles instead of confetti, and another incident in 1935, when Fullerton led an Orange march into the Conks' Catholic strongholds.
Main city gang leader: `King' Billy Fullerton of the Billy Boys Immigrant gang leader: Bull Bowman of the Norman Conks