Brief Fact Summary. Vassallo (Plaintiff) underwent breast implantation surgery in 1977. In 1992, it was discovered that the silicone had leaked or ruptured.
Synopsis of Rule of Law. 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.
An expert may base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion.View Full Point of Law
Issue. Should Defendant’s products liability be conditioned on Defendant’s actual or constructive knowledge of the risks of the product?
Held. Yes. Judgment affirmed because Defendant did have actual or constructive knowledge.
* Under the Restatement Third, an overwhelming majority of jurisdictions supports the proposition that a manufacturer has a duty to warn only of risks that were known or should have been known to a reasonable person.
* A manufacturer also has a duty to perform reasonable testing prior to marketing a product and to discover risks and risk avoidance measures that testing would reveal.
* Defendant will not be held liable under the 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.
* A manufacturer will be held to the standard of knowledge of an expert in the appropriate field and will remain subject to a continuing duty to warn of risks discovered following the sale of the product at issue.
Discussion. Defendant won on appeal but lost the case because the jury found that Defendant knew or should have known of the dangers of breast implants. The tests done by Defendant were incomplete and Defendant knew there was a possibility the implants could cause injury.