Legal Memorandum: Applicable Law for Defective Product Cases

Issue: What is the applicable law for defective pharmaceutical and product cases in the Virgin Islands?

In Hartzog v. United Corp., St. Croix Div. No. SX-04-CV-095, 59 V.I. 58, 2011 V.I. LEXIS 69 (V.I. Super. Ct. Sep. 6, 2011), the court explained that, until recently, a cause of action in the Virgin Islands for an injury caused by a product was governed by Restatement (Second) of Torts § 402A.  Id.  Section 402A provides, essentially, that a product manufacturer or seller who sells a product in a defective condition, unreasonably dangerous to the user, is subject to liability for physical harm if the product is expected to, and does, reach the user without substantial change in the condition in which it is sold.  Id.  The major thrust of § 402A was to eliminate privity, the Hartzog court further stated, so that a user or consumer could sue the manufacturer, as well as any other member of the distributive chain that sold a defective product.  Id. (citing Restatement (Third) of Torts: Products Liability § 3). 

The Hartzog court went on to explain that § 402A, created to deal with liability for manufacturing defects, cannot be appropriately applied to cases of defects based on inadequate instructions or warnings, even though a failure to warn is often construed as a manufacturing defect.  Id. (citing Martin v. S.C. Johnson & Sons, Inc., No. 91-cv-347, 1996 U.S. Dist. LEXIS 19722 (D.V.I. Mar. 21, 1996); Restatement (Third) of Torts: Products Liability § 3).  Accordingly, litigation under § 402A for failure to warn faced procedural hurdles.  Id.  The duty to warn closely resembles the law of negligence, […]