A design defect renders a product unreasonably dangerous as designed, taking into consideration the
utility of the product and the risk involved in its use. Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588
(Tex. 1999). A plaintiff must prove that there is a safer alternative design to recover under a design-defect
theory. Id.; Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex. 1995). In the absence of a safer
alternative, a product is not unreasonably dangerous as a matter of law. Caterpillar, 911 S.W.2d at 384.
Brockert v. Wyeth Pharmaceuticals, Inc. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Brown)
(federal preemption, product liability drugs FDA, defective design claim)
Wyeth’s second motion for summary judgment addressed all claims other than the failure-to-warn claims.
On appeal, Brockert challenges the trial court’s grant of this summary-judgment motion only as to her
Relevant here, Wyeth alleged that it was entitled to summary judgment on Brockert’s design-defect claims
because (1) in Texas, the Restatement (Second) of Torts, section 402A, comment k, applies to exempt
FDA-approved prescription drugs from strict-liability claims for design defect; and (2) Brockert has no
evidence of a safer alternative design. Because we hold that the trial court correctly granted summary
judgment on the second basis, we do not address the first.