1. N o t r e D a m e C o l l e g e 4 5 4 5 C o l l e g e R d . S o u t h E u c l i d , O h i o 4 4 1 2 1
Negligent Misinterpretations in Marketing:
Implied Warranty of Merchantability
Jake Allen
BU 462 – Legal Issues in Sports
May
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I would like to do something along the lines of marketing once I graduate so when I came across
these two studies, Denny v. Ford Motor Company and Saray Perez v. Wyeth Laboratories, Inc.; I
thought it would be a good topic to discuss due to the fact that both of these cases are results of
misrepresentation of products to customers. In the Denny v. Ford Motor Company case Ford
marketed an off-road vehicle as an everyday road travel and suburban vehicle. You will learn that
this was a misrepresentation in their marketing ploy. In the Saray Perez v. Wyeth Laboratories,
Inc. case Wyeth used the direct-to-consumer marketing technique to advertise prescription drugs
for over-the-counter use instead of marketing the drugs to physicians; in which the physician
would prescribe the drugs to the patients. The problem with this marketing technique is that the
consumers are not receiving the valuable information about the potential side effects and risks of
these prescription products.
On June 9th, 1986, Nancy Denny slammed on the brakes of her Ford Bronco II in an effort
to avoid a deer that had walked directly into the path of her vehicle. The Bronco rolled over, and
Denny was severely injured (Court of Appeals of New York). She proceeded to sue Ford, asserting
negligence, strict product liability, and breach of warranty under the Uniform Commercial Code.
The jury came back with a mixed verdict; the Bronco was not unreasonably dangerous and
defective, so there was no tort liability. They did find that Ford had violated the implied warranty
of merchantability – therefore breaching their contract – by selling Denny a vehicle that wasn’t fit
for its ordinary purpose (Court of Appeals of New York).
After viewing this introduction to the case of Denny v. Ford Motor Company, Nancy Denny
believed that she was purchasing a utility vehicle that would be suitable for a contemporary life
style and was considered to be a fashionable automobile in some suburban areas. In addition to the
vehicle being suitable for a contemporary life style, the Bronco II would be particularly appealing

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to women who may have been concerned about driving in the snow and ice with their children in
the vehicle (Court of Appeals of New York). Denny purchased what she thought was a smaller
utility vehicle. Ford marketed the Bronco II to Denny as an “ordinary purpose vehicle,” or a
conventional passenger automobile.
Ultimately, what Nancy Denny purchased was a product that was designed for off-road purposes.
Ford argued that the design features were necessary to the vehicles off-road capabilities. Under the
evidence of this case, a rational fact finder could have simultaneously concluded that the Bronco
II’s utility as an off-road vehicle outweighed the risk of injury, resulting from rollover accidents.
Ford marketed this product as an “ordinary purpose vehicle,” when in reality they should have
marketed this product as an “off-road vehicle (Court of Appeals of New York).” This may have
protected Ford from the Nancy Denny lawsuit and allegations made against their product and
warranties.
Nancy Denny sued Ford based on the two legal theories that follow – a tort action for strict product
liability and a contract action for implied warranty, but the question remains was the product “not
reasonably safe?” The court explains the distinction in terms: Implied Warranty originated in
contract law, “which directs its attention to the purchaser’s disappointed expectations,” while strict
product liability is a tort, and tort actions have traditionally been concerned with “social policy
and risk allocation by means other than those dictated by the marketplace (Court of Appeals of
New York).”
Judge Simons argued that “injury litigation alleging a design defect and may result in imposing
absolute liability on marketers of consumer products.” Simons, also stated in his ruling that the
word “defect” really has no clear meaning in law, making it very hard for a plaintiff to prove that
a product has/had a “defect” associated with the injury they incurred (Court of Appeals of New

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York). Judge Simons believed that “social concern for the protection of human life and property,
not regularity in commercial exchange.” This case was governed by tort law, which is the ultimate
reason that Nancy Denny won this case, because contract rules were ruled out of this case study,
ultimately making tort law the governing law in this case study, giving the win to Nancy Denny
over the Ford Motor Company (Court of Appeals of New York).
Once again it all goes back to how Ford marketed this vehicle to Nancy Denny and other
consumers who purchased the Bronco II. Ford’s marketing team didn’t market the product
properly, which put them liable for anything that happened that went against their marketing
scheme of the Bronco II. If Ford wanted to avoid the liability of the Bronco II they should have
assessed the marketing ploys they utilized. Ford needed to present the Bronco II to consumers as
a strict “off-road vehicle” that wasn’t intended for daily purposes of driving. They wanted to create
a smaller sport utility vehicle, rather than an off-road vehicle, but in reality the design features of
the Bronco II made it more of an off-road vehicle. This also goes to show, how crucial marketing
is to the business, and how marketing can get some businesses into trouble with liability standards
and potential lawsuits if they sell consumers something that doesn’t meet their expectations.
This portion of the paper is based on the Saray Perez v. Wyeth Laboratories, Inc. of 1999.
This case deals more with a manufacturing and consumer level marketing prowess that has come
to us through medical/drug and pharmaceutical sales by different companies. The Learned
Intermediary Rule made sense in the “doctor knows best” world described at the start of this case,
as a setting where consumers are dependent upon their doctors for advice and information about
prescription drugs that they could possibly take (Supreme Court of New Jersey). Judge John Minor
Wisdom explained the rationale behind the Learned Intermediary Doctrine, “prescription drugs
are likely to be complex medicines, esoteric in formula, and varied in effect. As a medical expert,

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the prescribing physician can take into account the propensities of the drug, as well as the
susceptibilities of the patient” (Supreme Court of New Jersey).
The Learned Intermediary Rule is a defense doctrine used in the legal system of the United
States. This doctrine states that a manufacturer of a product has fulfilled his duty of care when he
provides all of the necessary information to a “learned intermediary” who then interacts with the
consumer of a product. This doctrine is primarily used by pharmaceutical and medical device
manufacturers in defense of tort suits. This doctrine was first utilized and adopted by the Supreme
Court of Canada in Hollis v. Dow Corning Corp. (Wikipedia)
Courts do not wish to intrude upon the doctor-patient relationship. From this perspective
warnings that contradict information supplied by the physician will undermine the patient's trust
in the physician's judgment. Second, physicians may be in a superior position to convey
meaningful information to their patients, as they must do to satisfy their duty to secure informed
consent. Third, drug manufacturers lack effective means to communicate directly with patients,
making it necessary to rely on physicians to convey the relevant information. Unlike over-the-
counter products, pharmacists usually dispense prescription drugs from bulk containers rather than
as a unit-of-use package in which the manufacturer may have enclosed labeling. Finally, because
of the complexity of risk information about prescription drugs, comprehension problems
complicate any effort by manufacturers to translate physician labeling for lay patients. Ultimately,
in the majority of states the courts have accepted this as a liability shield for pharmaceutical
companies who dispense prescription drugs through direct-to-consumer marketing (Supreme
Court of New Jersey)
Recently, this doctrine has called into question due to the increased use of direct-to-
consumer advertising, whereby manufacturers are marketing prescription drugs to individuals

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rather than to physicians. The dissent views this as a major concern regarding patient's
communication with and access to physicians who are medically proven to make the proper
decisions for their wellbeing. Direct-to-consumer marketing has taken away the ability for patients
to receive the proper prescription and explore their questions and concerns about the medication
with the prescribing physician (Wikipedia).
From the consumer perspective I believe that direct-to-consumer advertising gives the
consumers an extreme amount of power when it comes to the purchasing of prescription drugs and
medical products that are normally prescribed to them by physicians. Consumers have the ability
to gain quick access to prescription medications that they feel they may need to make them feel
well, or to take because they were once previously prescribed for that medication. This power that
the consumer now possesses could be viewed as a pro of direct-to-consumer marketing, but I truly
believe that the cons of direct-to-consumer marketing heavily outweigh the pros.
Some of the cons of direct-to-consumer advertising when it comes to the buying and selling
of prescription medications comes down to the lifestyle that many of these consumers live. The
direct marketing of drugs to consumers generates the corresponding duty requiring manufacturers
to warn of defects in the product. The Food and Drug Administration has established a
comprehensive regulatory scheme for direct consumer marketing of pharmaceutical products, but
the reality of this matter is that consumers lose the doctor to patient relationship that they would
have gained from seeing a physician concerning these prescription medications (Supreme Court
of New Jersey). In my eyes it's pretty simple, prescription medication is supposed to be prescribed
to a consumer, and not directly marketed to the consumer. Consumers need to be educated on what
they are taking, so that if that drug has side effects the consumer can be educated on how to handle
specific situations.

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When it comes to the stakeholders within the pharmaceutical direct-to-consumer scenario,
I believe that the major stakeholders are the pharmaceutical companies themselves, and the
consumers who are currently purchasing and using directly marketed pharmaceutical drugs. The
reason I say the pharmaceutical companies are a major stakeholder in this scenario, is because by
directly marketing their prescription medications to these consumers, they are opening themselves
up to several potential lawsuits if they do not follow the FDA laws that have been established.
Consumers are also major stakeholders in this scenario because they are placing themselves at risk
when it comes to purchasing directly marketed prescription products from these pharmaceutical
companies. Consumers need to realize that prescription drugs are just that. These prescription
drugs should be prescribed by a physician who has the knowledge to explain to the consumer of
the potential side effects and risks that they could encounter by taking these medications.
This style of marketing does create a sense of happiness for a majority of the people who
take prescription medications, especially those people who have taken prescription medications
for long periods of time. This allows them to have their own route in gaining prescription
medications, instead of going to see their physicians. Even though this does provide “the greatest
happiness for the greatest number,” I do not believe this will produce the greatest overall good
because there are so many risks involved with prescription medications.
The deontological thinker in this direct-to-consumer marketing situation would want these
pharmaceutical companies to respect the lives of these consumers, by informing them of potential
side effects and risks associated with these prescription products that they are purchasing, even if
that meant that these consumers could or would potentially purchase a different product from a
different company (Supreme Court of New Jersey). Ultimately, these prescription manufacturers
have specific rights and duties that they need to follow when it comes to directly marketing their

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products to the consumer's. These companies must have the ability to keep the promise to
consumers that these prescription products are the same as what they have taken in the past, and
with that being said these companies should push consumers to visit their physicians before taking
these prescription products over-the-counter.
I believe that direct-to-consumer marketing with prescription products is an extremely risky
marketing technique for prescription manufacturing companies throughout the world. I believe this
opens up too many potential threats to these prescription manufacturers when it comes to the
pursuit of lawsuits against them if a consumer has a bad reaction to a particular type of prescription
product. Prescription drugs are something that need to be prescribed by a physician for a particular
consumer, meaning that these consumers need to maintain the doctor to patient relationship when
it comes to the prescribing of medications.
Both cases present the flaws of marketing teams within different industries. Ultimately, with each
case study, marketers didn’t present the proper message to their consumer base, which in turn
attracted the wrong consumers to their products. We now understand how important the message
that businesses try to convey to their target consumer really is. Marketing is a dangerous game,
which can lead a business to major lawsuits if they aren’t careful with how they market their
products and the image that they want their products to present to the consumers.
The lawsuits are similar in the essence that they both deal with protecting the majority of
consumers. Once again we see that the consumers can hammer liability of products, if those
products “don’t meet expectations” of the consumers who purchase them. Both lawsuits also deal
heavily with tort law, and not contract law. Tort Law provides relief to a person or persons who
have suffered harm from wrongful acts of others, in both cases the wrongful acts are the marketing
messages presented by the companies (Free Dictionary). Overall, Tort Law protects the majority

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of people throughout the world, in all reality, protecting the majority of people and having that
public policy in place of always protecting the majority is something that leads to a stronger
argument when the case involves Tort Law.

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Reference
Court of Appeals of New York. "Denny v. Ford Motor Company." Halbert, Terry and Elaine
Ingulli. Law & Ethics In The Business Environment. Mason: South-Western Cengage
Learning, 2012. 307-309.
Free Dictionary. "Tort Law." 1 January 2013. Free Dictionary. 1 May 2015. <legal-
dictionary.thefreedictionary.com>.
Supreme Court of New Jersey. "Saray Perez v. Wyeth Laboratories." Halbert , Terry and Elaine
Ingulli. Law and Ethics in The Business Environment. Mason: South-Western Cengage
Learning, 2012. 271-274.
Wikipedia. Learned Intermediary Rule. 1st June 2012. 1 May 2015. <www.wikipedia.com>.