Schwarz v. Block Drug Co Inc

UNITED STATES COURT OF APPEALS For the Fifth Circuit ___________________________ No. 98-20109 ___________________________

CELIA SCHWARZ, Individually as next friend of Erica Greenstein and Jared Greenstein, Minors; ERICA GREENSTEIN; SEYMOUR GREENSTEIN; JARED GREENSTEIN Plaintiffs-Appellants, VERSUS

BLOCK DRUG CO. INC.; ET AL, Defendants, BLOCK DRUG CO. INC.; BLOCK DRUG CORP. Defendants-Appellees.

___________________________________________________ Appeal from the United States District Court for the Southern District of Texas (H-96-CV-3055) ___________________________________________________ April 15, 1999 Before GARWOOD, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:* After reviewing the record and considering the briefs and arguments of counsel, we conclude that the Plaintiffs produced no evidence that the Defendant drug manufacturer knew or should have known its product was likely to cause brain tumors in children.

Under comment K of the Restatement of Torts (Second) § 402A, a drug manufacturer is responsible in damages only if it failed to warn of a defect of which it knew or should have known. Therefore, the district court correctly granted summary judgment.

AFFIRMED.