In Rash, the plaintiff alleged that he suffered injuries as a result of the use of a "pain pump" (an "ambulatory drug delivery system") manufactured, designed, and sold by the defendants. One of the plaintiff's claims alleged that the pump was defective due to "inadequate post-market warnings." The defendants filed a motion to dismiss under FRCP 12(b)(6), arguing that Virginia has never recognized a cause of action based on a post-sale duty to warn.
In denying the defendants' motion to dismiss for the post-sale duty to warn claim, the court concluded as follows:
Although both the Fourth Circuit and district courts in Virginia have considered whether a post-sale duty to warn exists under Virginia law, the Supreme Court of Virginia has not yet considered the issue. See Hart v. Savage, No. L-04-1663, 2006 WL 3021110, at *2 (Va. Cir. Ct. Oct. 19, 2006). Accordingly, I must predict how the Supreme Court of Virginia would answer that question. See St. Paul Fire & Marine Ins. Co. v. Am. Int’l Specialty Lines Ins. Co., 365 F.3d 263, 272 (4th Cir. 2004). To do so, I may consider “canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state’s highest court, well considered dicta, and the state’s trial court decisions.” Wells v. Liddy, 186 F.3d 505, 528 (4th Cir. 1999). The general trend among other states is also relevant. See St. Paul Fire & Marine Ins. Co., 365 F.3d at 272.
Considering these factors, I find that the Supreme Court of Virginia would allow a cause of action based on a negligent breach of a post-sale duty to warn to proceed. The Restatement (Third) of Torts: Products Liability § 10 (1998), the view of other states, and dicta from the Fourth Circuit’s opinion in Bly v. Otis Elevator Co., 713 F.2d 1040 (4th Cir. 1983), support this determination.
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