Monday, August 31, 2015
Twelve U.S. House members are sponsoring the Innocent Sellers Fairness Act (H.R. 1199), designed to remove liability for product injuries from sellers and keep it on manufacturers.
The bill would make it so that no seller of any product would be liable for damages, except in the following cases:
- The seller was the manufacturer of the product;
- The seller participated in the design of the product;
- The seller participated in the installation of the product;
- The seller altered, modified or expressly warranted the product in a manner not authorized by the manufacturer;
- The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant;
- The seller had actual knowledge of the defect in the product at the time the seller supplied the product;
- The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer; and
- The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.
A version of the bill has been in the House since 2007, but the number of sponsors has risen recently. U.S.Glass News Network has details.
Monday, August 17, 2015
George Conk has posted one of his older pieces to SSRN: Compared to What? Instructing the Jury on Product Defect Under the Products Liability Act and the Restatement (Third) of Torts: Products Liability. The abstract provides:
Products liability litigation relating to mechanical devices has centered on the concept of design defect, specifically, the unreasonable failure of a manufacturer to take advantage of current design capabilities that would reduce or even eliminate a product's potential dangers. The Restatement (Third) of Torts: Products Liability (Restatement (Third)), promulgated by the American Law Institute in 1997, places the focus of design-defect litigation on proof of the existence of an alternative, safer design for a product, which demonstrates that the product was not designed to be reasonably safe.
The Restatement rejects the long-dominant consumer expectations test of defect and asserts that the risk-utility analysis everywhere relied up must specify that the plaintiff prove as a fact that there was available a safer alternative design which, if omitted, renders the product not reasonably safe.
By concretizing the relevant design-defect considerations, we will be better able both to hold the designer to the ideal of prudence and to avoid the uncritical sympathy for the injured that courts have long seen as a danger of unclear limitations on liability. In case after case, courts uphold verdicts rooted in risk-utility proof and argument - on the balance of costs and benefits of improving the safety of a product's design - without inquiring closely into how to formulate the balance properly. The New Jersey Products Liability Act states that it is a complete defense if: "At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product."
Tuesday, July 14, 2015
At JD Supra, Chris Jones of Sands Anderson in Virginia discusses some of the considerations, which include the expansion of products liability into automobile accident cases and the potential need for a post-sale duty to warn in jurisdictions that have not adopted it.
Thursday, May 14, 2015
Aaron Twerski & James Henderson have posted to SSRN Drug Design Liability: Farewell to Comment K. The abstract provides:
Half a century ago the reporter for the Second Restatement of Torts, William Prosser, drafted Comment k to § 402A, defining the liability of drug companies for defective prescription products. Prosser’s attempt to shelter drugs from design defect liability has confused courts and commentators alike. Courts at first interpreted Comment k to immunize drug manufactures from design-based liability; more recently, a growing number have begun to interpret the Comment to allow such actions. However, there is wide disagreement regarding the conditions under which courts should permit drug design claims. Courts have articulated no fewer than eight different tests, all relying on Comment k. This article examines the historical origins of Comment k and explains why it has confused so many judges and academics. The authors argue that the tests adopted by courts in reliance on Comment k are seriously flawed. In its stead, the article advocates that a drug manufacturer should held liable for defective drug design only when the drug is not fit for use by any class of patients. All other drug-related claims should be based on findings that the drug either contained a manufacturing defect or was marketed with inadequate warnings.
Monday, May 11, 2015
From Friday's Genie Industries v. Matak:
In this case, the users of an aerial lift supporting a worker 40' in the air attempted to move
the machine. Signs on the machine and instructions in the user manual warned of the obvious danger:
the machine would tip over and the worker would fall to the ground. And that is what happened. So
obvious was the danger that although over 100,000 lifts of the same general model have been sold
all over the world, the jury was provided with evidence of only three similar accidents involving
similar AWP lifts over the past decade—none of which involved the intentional destabilization
of a fully-extended 40' lift. The lift cannot be said in any sense to be unreasonably dangerous.
Deborah LaFetra, of Pacific Legal Foundation, comments here.
Monday, May 4, 2015
Last year, the Alabama Supreme Court let stand its holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute. (Coverage here) Now the legislature has sent a bill to the governor that would overturn the result. The bill passed the Senate 32-9 and the House 86-14. Legal Newsline has the story.
Tuesday, April 14, 2015
Richard Epstein & Ryan Abbott have posted to SSRN FDA Involvement in Off-Label Use: Debate between Richard Epstein and Ryan Abbott. The abstract provides:
Before a drug can be sold legally in the United States, the Food and Drug Administration (FDA) must approve it as safe and effective for a particular indication or use — the use then appears on the drug's label. Federal law, however, allows doctors to prescribe drugs that the FDA has approved for one indication for any other indication, even though the FDA never evaluated the safety or efficacy of the drug for that use.
Off-label prescribing is an integral part of modern-day medicine. Patients may benefit when they receive drugs or devices in contexts not approved by the FDA. In fact, in some instances an off-label use may be the standard of care for a particular health problem. However, off-label prescribing can also harm patients, especially when an off-label use lacks a solid evidentiary basis.
For this reason, the FDA forbids drug companies from promoting their own products for off-label use, except for certain activities such as disseminating research literature and sponsoring educational programs. In recent years, civil and criminal actions against drug companies for illegal promotion for off-label use have proliferated, leading to many large settlements. For example, in July 2012, GlaxoSmithKline pled guilty and paid $3 billion to resolve criminal and civil liability arising from the company's unlawful prescription drug promotion, failure to report safety data, and false price reporting practices.
As a result of this recent litigation, many have questioned the FDA's current role in regulation of off-label use and whether more or less intervention is needed. This debate sought to address these very issues.
Monday, April 6, 2015
The focus of the trial was a rear-mounted gas tank. The verdict comes nearly two years after Chrysler agreed to a scaled-back recall of some older-model Jeeps with rear-mounted tanks. The New York Times has the story.
Thanks to Susan Raeker-Jordan (Widener) for the tip.
Monday, March 30, 2015
Last week, Florida adopted new model jury instructions for products cases. On design defects, there is a split in Florida circuits between the consumer expectations and risk-utility tests; the instructions do not resolve the split. Newsome Melton's website has more details here.
Tuesday, March 17, 2015
Richard Ausness (Kentucky) has posted to SSRN 'Danger is My Business': The Right to Manufacture Unsafe Products. The abstract provides:
While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products liability. Other doctrines, such as the regulatory compliance defense and the contract specification defense, are aspects of the broader law of torts. Finally, a few of these doctrines, such as federal preemption and the government contractor defense, are rooted in principles of federal supremacy.
Wednesday, February 11, 2015
In Watts v. Medicis Pharmaceutical Corp., an intermediate appellate court in Arizona reversed the dismissal of plaintiff's complaint, holding that the Uniform Contribution Among Tortfeasors Act abrogates the learned intermediary doctrine. The opinion is here: Download AMANDA WATTS, an adultindividual, PlaintiffAppellant, v. MEDICIS PHARMACEUTICAL CORPORATION. Thanks to Bob Bohrer (Cal Western) for the tip.
Wednesday, December 31, 2014
Thursday, November 20, 2014
On Wednesday, the Pennsylvania Supreme Court, 4-2, decided to continue using the Restatement (Second) of Torts for products liability cases. Some highlights:
Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.
Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.
To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq.,albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm.
Majority Opinion (Castille): Download DC-_604793-v1-Pa__Supreme_Court_Tincher_majority_opinion
Concurring and Dissenting Opinion (Saylor): Download DC-_604794-v1-Pa__Supreme_Court_concurring_and_dissenting_opinion_pdf
Updated: Law 360: Pa. Tort Revamp Gets High Marks From Both Sides
Liberty Blog: Tort law remains a mess in Pennsylvania
Monday, November 3, 2014
In May v. Air & Liquid Systems Corp., the Court of Special Appeals of Maryland reaffirmed the rule that there is no duty to warn of asbestos-containing replacement parts that defendants did not manufacture or place in the stream of commerce.
JDSupra has coverage here.
Monday, October 6, 2014
The Connecticut Supreme Court has clarified procedural requirements for the malfunction doctrine in products cases. If the plaintiff only pleads specific defects in a product, the malfunction doctrine can't be used as an alternative way to defeat a motion for summary judgment because there was no notice to the defendants and the court. The decision is White v. Mazda Motor of America, Inc., 2014 WL 4548058 (Conn. 2014).
Tuesday, September 30, 2014
In Pennsylvania, a federal split is resolved: manufacturing defect and implied warranty claims are not viable against pharmaceutical and medical device companies. It was already clear that design and warning defect claims were not viable. Thus, under current Pennsylvania law, negligence is the only cause of action plaintiffs have against pharmaceutical and medical device companies. The Legal Intelligencer has the story.
Thursday, September 11, 2014
The first of about 6,000 Pinnacle metal hip poisoning trials is underway, and plaintiff's lawyer Mark Lanier is producing e-mail evidence designed to show Johnson & Johnson knew of the concern as early as 2001. Plaintiff claims that the Pinnacle hip's design is flawed: the metal-on-metal version of the artificial hip produces debris in the body that can cause metal poisoning. Johnson & Johnson reached a $2.5B settlement last year on another line of its artificial hips known as ASRs. Bloomberg has the story (via Conk/Torts Today).
Tuesday, August 26, 2014
The Alabama Supreme Court recently denied rehearing in Weeks v. Wyeth, letting stand a holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute. The rationale appears to be the FDA's requirements that the name-brand manufacturer provide the material for the drug label contents. Generic manufacturers are not allowed to alter those contents. Two views of the case, one from Richard Garrett of the Alabama Policy Institute, and the other from Lew Garrison, who represented the plaintiff.
Thursday, July 17, 2014
In Bostic v. Georgia Pacific Corp., the Texas Supreme Court rejected the "any exposure" or "some exposure" theory of causation, and held that a "substantial factor test" applies to causation in asbestos cases.
Debra J. LaFetra at Pacific Legal Foundation has a full write up of the decision.
Monday, July 14, 2014
James Rustad, son of TortsProf Mike Rustad, is a singer/songwriter who focuses on social commentary. Given his father's interest in torts, it's no surprise that some of his songs have a torts theme. Take a listen to his "The Great Inevitably Exploding Ford Pinto." James has his own YouTube channel here.