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Evidence of a Limited Access Program in a product liability case involving Propulsid was not admissible to prove a defect in the drug. In re Propulsid Products Liability Litigation: Civil Action No. 00-2577 (Diez), MDL No. 1355 Section “L,” E.D. La., March 11, 2003. The spouse of a decedent who died as a result of using a drug that was subsequently removed from the market sued the manufacturer. In the course of the litigation, the plaintiff sought to admit evidence of the Limited Access Program (LAP) – which was created subsequent to her husband’s death – to prove the defect in the product. The defendants moved to exclude evidence of subsequent remedial measures. The federal district court handling the Multi-District Litigation (MDL) granted the motion with regard to warning labels issued after the death of the decedent. It originally reserved ruling as it related to the LAP, and in this decision, it granted the motion to exclude the evidence as it related to the LAP.

The LAP was instituted to allow some patients to continue to use Propulsid because it was the only treatment for certain conditions. The program requires patients to meet certain health and safety criteria and be approved by the FDA. The plaintiff argued that the LAP was not a subsequent remedial measure because Propulsid was still on the market, available on a restricted basis.

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