Part I:

1. Briefly explain the difference between negligence and an intentional tort. (2

points)

Negligence is the most common tort and deals with an unintentional wrong committed

against or by a person or business entity. Essentially, it is the failure to do what a

reasonable person would do under the circumstances.

Intentional tort is when a wrongdoer purposely intends to harm another person. The

court’s verdicts frequently include awards of both compensatory and punitive

damages. The theories of liability include actions for a battery, assault, invasion of

privacy, defamation, infliction of emotional distress, and false imprisonment.

2. What are the elements of negligence? (1 point)

The four elements of negligence that must be present to establish an actionable claim

are duty, breach of duty, negligence must be the proximate cause of the harm, and the

person sustains damages.

3. Provide 3 examples of an intentional tort and briefly explain what they are. (2

points)

a) A battery is the intentional touching of another person or an object that is closely

related with the body in a harmful or offensive manner. The tortfeaser must have

the intention to cause harm. For example, in boxing, the primary goal is to knock

out the opponent. In a match between Evander Holyfield and Mike Tyson, Tyson

bit Holyfield’s ear during their match; this was not a usual touching that is

associated with the sport, so this would constitute a battery.

b) An invasion of privacy is when a person, who wants to be left alone, faces an

unwarranted intrusion upon this right. Truth cannot be considered a defense to an

invasion of privacy. For example, the disclosure at a party that the host was a
 prostitute twenty years ago is considered offensive. Even though the information

is correct, it is still a private matter; that fact would not protect the person who

discloses this information from liability.

c) False imprisonment is the intentional and wrongful infliction of confinement

against a person’s will without consent or legal authority. The confinement can

occur from acts or words which the person fears to disregard. For example, a

person, who has been detained in a department store and has been falsely accused

of stealing store merchandise, can sue the store for false imprisonment if the store

acted without just cause in its actions.

Part II:

4. What is the issue in the case Virginia Brumley v. Pfizer, Inc? (1 point)

The issue is that the plaintiffs assert that Pfizer failed to effectively communicate the

level of risk associated with consuming Viagra for a person with Mr. Brumley’s

medical condition. Pfizer, on the other hand, moves for summary judgement and

contends that it adequately warned Mr. Brumley’s physician, Dr. Brackin, of the risk

of consuming Viagra, especially for patients suffering a heart disease.

5. What must a plaintiff show in order to recover under the theory of strict liability

for a defective product? (1 point)

In order to recover under the theory of strict liability, the plaintiff must establish:

1) The defective and unreasonably dangerous condition of the defendant’s

product.

2) A casual connection between such condition and the plaintiff’s injuries.

A product is considered defective if it is:

1) Unreasonably dangerous as manufactured.

2) Unreasonably dangerous as designed.

 3) Unreasonably dangerous because adequate warnings or instruction were not

provided.

6. In this case, how does Mrs. Brumely believe that Viagra was defective? (1 point)

The plaintiff believes that Mr. Brumley died due to the consumption of Viagra, and

thus asserts the claims of strict products liability and negligence. According to the

theory of strict liability, one of the conditions under which a product can be

considered defective is if it is unreasonably dangerous because adequate warnings or

instructions were not provided. The plaintiff believes that Pfizer did not effectively

communicate the side-effects and the risk inherent in Viagra, especially in the case of

Mr. Brumley who suffered a heart disease. The plaintiffs assert that the first warning

is inadequate because it is labeled “PRECAUTION” instead of “WARNING”, and

submit a testimony from Dr. Brackin that a “warning” increases a physician’s

awareness level.

7. Briefly explain why the courts dismissed Mrs. Brumley’s claim against Pfizer. (2

points)

Firstly, the Court fails to see any material difference between the words

“WARNING” and “PRECAUTION”, when both are intended to warn physicians not

to an inherent risk caused by the consumption of Viagra, but to an inherent risk in

sexual activity in patients suffering with heart disease. Additionally, Dr. Brackin

testified that had he been aware of the information in the current package insert, he

wouldn’t have prescribed Viagra to Mr. Brumley. A physician who is aware of his

patient’s heart condition should also know that the patient is at risk both during sexual

activity and during other strenuous activities. The Pfizer warning addressed the

specific circumstances in which Mr. Brumley suffered a fatal heart attack. There was

no evidence which showed that neither version of the Viagra package insert contains
any language that would delude the physician into thinking that Viagra could lessen

the risk factor.

The Courts figured that it is reasonable for the manufacturer to rely on the health care

provider to pass on the warnings associated with the consumption of the medication

as the provider has the knowledge to understand the propensities and dangers of using

the given drug, and as the prescriber, the provider stands between the drug and the

consumer. The Court came to the conclusion that there is not enough evidence to

prove that the warning was inadequate.

The evidence clearly indicates that Dr. Brackin was aware that Mr. Brumley should

not have been prescribed Viagra. It is also undisputed that an angina patient with

chest pains is in immediate need of the use of his nitrates and that the Viagra insert

that Dr. Brackin had when he prescribed Viagra to Mr. Brumley listed use of nitrates

“in any form” as a contraindication. For these reasons, the Courts dismissed the

plaintiff’s claims.