April 3, 2006
What Don't You Like?
One thing I've done this year and last in teaching Products Liability is assign an essay midway through the term, asking students to describe something with which they have disagreed and to propose a solution (whether legislative, judicial, or otherwise). I finished up grading them today and, as last year, it's a very interesting exercise.
Also as last year, the substantial leader in issues (7 out of 31) with which students disagree is the absence of a regulatory compliance defense. The Owen et al. casebook includes Metzgar v. Playskool, 30 F.3d 459 (3d Cir. 1994), in which an infant choked to death on a small play block that was in compliance with all relevant regulations and which had never caused choking before. The Third Circuit reversed the grant of summary judgment.
The concept of regulations as a floor, rather than a ceiling, is clearly problematic to a substantial percentage of law students, at least here. They discuss the problems executives at Playskool face, and how frustrating it must be to do what seems like the right thing, and yet still face exposure in strict liability (humanizing the defendants, if you will).
If you were in a Products Liability course and your professor gave a similar assignment, what would you discuss? Comments are, as always, open.
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» Regulatory Compliance and Presumptions from PointOfLaw Forum
On the TortsProf blog, Ive mentioned the consistent surprise students express at the lack of a regulatory compliance defense. In fact, in my Products Liability course, I have assigned an essay on what each student thinks is wrong about the... [Read More]
Tracked on Jun 28, 2006 4:06:23 AM
Try asking the students:
Should we judge the conduct of Merck by what they knew when they got FDA permission to market Vioxx? or by what they learned (or should have learned) after millions of people had ingested the toxin?
Posted by: George Conk | Apr 3, 2006 8:26:48 PM
They're actually pretty aware of the implications of such a defense and most of them do not want preemption outright, but more of a presumption of safety or an elevated burden of proof. The implied allegations of your comment would presumably be part of the evidence to overcome such a presumption. The frustration they feel comes from situations where nobody asserts anything like a regulatory failure or a regulatory fraud and yet liability exposure attaches.
(Disclosure: I do a little work for Merck. From your practice site [georgeconk.com], I take it you do some plaintiff-side Vioxx work, though I may be mistaken.)
Posted by: Bill Childs | Apr 4, 2006 3:40:47 AM