Friday, November 3, 2017
Ellen Wertheimer & Mark Rahdert have posted to SSRN The Force Awakens: Tincher, Section 402A and the Third Restatement in Pennsylvania. The abstract provides:
In Tincher v. Omega Flex (2014), the Pennsylvania Supreme Court reached two important decisions regarding Pennsylvania product liability law. First, it overruled an earlier decision, Azzarello v. Black Brothers, Inc., which had mandated a bifurcated process for assessing product defects that required trial judges first to assess whether a product was potentially unreasonably dangerous before submitting the question of whether it was defective to the jury. Second, it rejected efforts by some Justices, federal courts and the defense bar to have the Court adopt the negligence-oriented principles of the American Law Institute’s Third Restatement of Torts: Product Liability. Instead, the Court reaffirmed Pennsylvania’s commitment to the strict product liability principles set in Restatement (Second) Section 402A. This article assesses the implications of the Tincher decision for the future development of product liability law in Pennsylvania and elsewhere. It explains the foundational principles of strict product liability that the decision affirms, discusses the Court’s establishment of a composite consumer expectation and risk-utility test for determining defects in product design, defends the Court’s commitment to modest and incremental common-law adjudication, and discusses the development of jury charges that are faithful to Tincher’s approach. The article also takes issue with attempts by the product liability defense bar to push post-Tincher adjudication toward a negligence-based framework that is inconsistent with the Court’s reaffirmation in Tincher of a doctrine of strict product liability.
This article will be published in Volume 27 of the Widener Law Journal. It is currently in draft form and should not be quoted without the permission of its authors.
Wednesday, September 6, 2017
David Berke, who appears to be a Yale Law student, has posted to SSRN Products Liability in the Sharing Economy. The abstract provides:
This Note undertakes an in-depth review of an important legal problem that has not yet been addressed—the role of products liability in the sharing economy. To date, two foundational questions have not been posed in the sharing economy literature, much less answered. First, what descriptive role, if any, does products liability have in the sharing economy? Second, what role should products liability have in the sharing economy and its regulation, as a normative matter? In Part I, this Note examines a hypothetical sharing economy products liability claim point-by-point and finds that, descriptively, such a claim is conceivably possible but extremely difficult. In Part II, this Note argues against this current state of the law and advocates a more robust role for products liability in the sharing economy.
Friday, May 19, 2017
The latest edition of Marshall Shapo's products liability treatise is available from Elgar. The blurb provides:
Monday, May 15, 2017
Underscoring the importance of tort warnings. From NPR:
The Food and Drug Administration is under pressure from the Trump administration to approve drugs faster, but researchers at the Yale School of Medicine found that nearly a third of those approved from 2001 through 2010 had major safety issues years after the medications were made widely available to patients.
Seventy-one of the 222 drugs approved in the first decade of the millennium were withdrawn, required a "black box" warning on side effects or warranted a safety announcement about new risks, Dr. Joseph Ross, an associate professor of medicine at Yale School of Medicine, and colleagues reported in JAMA on Tuesday. The study included safety actions through Feb. 28.
The full NPR story is here. Thanks to David Logan and Mike Green for the tip.
Tuesday, April 18, 2017
On April 6, the Florida Supreme Court ruled, unanimously, that Congress's decision to regulate, but not ban, cigarettes does NOT preclude tort claims under state law. The court reached the opposite conclusion from a 2015 Eleventh Circuit case, which held tort claims undermine the decision by legislators to keep cigarettes on the market. The Eleventh Circuit is schedule to review its holding en banc, and a final ruling is still pending. Courtroom View Network has the story.
Thursday, April 13, 2017
In Forbes, Michael Krauss opines on "What Should Tort Law Do When Autonomous Vehicles Crash?". The gist:
How should tort law deal with these kinds of future problems? In my view, the answer follows from a sound understanding of the more sensible elements of America’s often troubling products liability law:
- In the case of manufacturing defects, manufacturers of autonomous vehicles should be liable to victims for accidents that occurred. Manufacturers have marketed a product that does not perform as advertised, and this misrepresentation provides both the moral grounds for liability and the appropriate economic incentives to perform efficient (not perfect – no one is perfect) quality control.
- In the case of informational defects (failure-to-warn problems), manufacturers should be liable only if they were negligent (that is, if a reasonable manufacturer would have provided a better warning or better instructions). If, as seems likely, legislation or regulations stipulate what warning an autonomous vehicle should contain, compliance with such law or regulation should exclude liability, just as it should (for example) for the mandated warnings on prescription drugs.
- In the case of design defects, the rule should again be based on negligence– was this design choice made by the manufacturer a good one, all things considered? Very important moral issues arise here (see my two moose examples above) and in some cases informed consent of risks imposed by programming would likely be required. This is where design and information defects merge, and so it is totally appropriate that the same legal standard apply in both cases. These issues could be left to properly instructed juries’ evolving notions of reasonable care under the Common Law, or could be pre-empted by regulators (who might choose to maximize social utility at the cost of precluding driving choices heretofore felt to be reasonable). Such regulation should be very carefully debated before being adopted – but if it is adopted it should bind tort tribunals until public outcry leads to its change.
Monday, March 6, 2017
Attorneys representing the families of the children slain at Sandy Hook attempted to fit their allegations within an the negligent entrustment exception to the 2005 Protection of Lawful Commerce in Arms Act. Their case was dismissed, and now they are appealing to the state supreme court. The attorneys rely on a 1977 Michigan case:
The families attorneys are hoping a case involving a slingshot injury in Michigan will help them prove that one of the largest gun manufacturers in the world negligently entrusted the AR-15 to Lanza even though he didn't actually purchase it and help them overcome PLCAA's strict language favoring the gun manufacturers.
The case in Michigan was a 1977 lawsuit by the family of a 12-year-old against a company that manufactured slingshots. The boy was injured when he was struck in the eye by a pellet fired from a slingshot that richocheted off a tree.
The court allowed the case to go before a jury ruling that the company entrusted the slingshot to a class of people, in this case younger children, that made the ultimate accident foreseeable.
In this case, Koskoff argued instead of a slingshot Remington used marketing and product placement to purposefully target a "younger demographic of users" interested in the most dangerous and lethal use of their weapon.
The Hartford Courant has the story.
Thursday, February 9, 2017
At JD Supra Business Advisor, Eric Wolff reviews a potential Justice Gorsuch's effect on products cases.
Wednesday, February 1, 2017
At Singularity Hub, Ryan Abbott, professor of law and medicine, discusses coming changes in technology and how they might affect tort law:
Abbott appears to be the first to suggest in a soon-to-be-published paper that tort law treat AI machines like people when it comes to liability issues. And, perhaps more radically, he suggests people be judged against the competency of a computer when AI proves to be consistently safer than a human being.
Safety is also the big reason why Abbott argues that in the not-too-distant future, human error in tort law will be measured against the unerring competency of machines.
“This means that defendants would no longer have their liability based on what a hypothetical, reasonable person would have done in their situation, but what a computer would have done,” Abbott writes. “While this will mean that the average person’s best efforts will no longer be sufficient to avoid liability, the rule would benefit the general welfare.”
The full article is here.
Updated: Alberto Bernabe comments at Torts Blog.
Sunday, January 29, 2017
Lauren Sterrett has posted to SSRN Products Liability: Advancements in European Union Product Liability Law and a Comparison between the EU and U.S. Regime. The abstract provides:
In recent years, the product safety regime in the European Union (“EU”) has been amended to provide increased stability for producers and more protection for consumers. The framework seeks to balance the interest of consumers in having access to safe products with the interest of producers in avoiding costly litigation due to differing national standards. There are currently three prominent EU directives designed to protect the health and safety of consumers. These three directives are the Product Liability Directive (the “Directive”), the European General Product Safety Directive (the “GPSD”), and the Product Warranty Directive.1 This paper will focus on the impact of the Directive and the GPSD in the EU and will compare these two directives with product liability law in the United States (“U.S.”). This paper will also explore the newly proposed Product Safety and Market Surveillance Package (the “Package”), expected to replace the GPSD as soon as 2015, and the impact that the Package will have on product liability law in the EU.
The combination of the Directive and the GPSD provide a comprehensive scheme for product liability law in the EU. When compared with U.S. product liability law, these two directives achieve greater harmonization across member states than the current U.S. product liability regime. Although both the EU and the U.S. have similar product liability laws, the current EU regime often affords consumers greater access to redress and maintains strict requirements in regards to product labeling. The proposed Package will introduce even more harmonization into the EU, making it harder on economic operators who sell or produce defective products to escape liability. However, the EU product liability regime is not without problems and there are multiple areas in which the U.S. product liability framework offers better alternatives and provides less confusion for manufacturers and consumers.
Monday, January 23, 2017
On Thursday, the Court granted cert in a products case against Bristol-Myers Squibb regarding its blood-thinning drug, Plavix. The jurisdictional issue is whether, as the California Supreme Court ruled, Bristol-Myers Squibb must defend claims in California by nonresidents who allege the blood-thinning drug Plavix caused bleeding and strokes.
According to the cert petition (PDF), Plavix is not made, designed or packaged in California. The California Supreme Court nonetheless ruled that both in-state and out-of-state residents could sue in the state because Bristol-Myers conducts research, sales and marketing there.
The ABA Journal has the story.
Monday, January 16, 2017
In late December, the Connecticut Supreme Court reaffirmed its commitment to 402(A), but also modified existing doctrine. Jennifer Brooks Crozier and Adam Masin explain at JD Supra Business Advisor. The gist:
In arguably the most important Connecticut tort-law decision in decades, the Connecticut Supreme Court in Bifolck v. Philip Morris, Inc., --- A.3d ---, 2016 WL 7509118 (Conn. Dec. 29, 2016), declined to adopt the approach of the Restatement (Third) to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under § 402A of the Restatement (Second). The Court also made a number of “modest refinements” to the Court’s existing interpretation of § 402A. Most importantly, the Court held that every product liability design-defect claim must allege that the product was “unreasonably dangerous,” but declined to box plaintiffs into one definition of that term for purposes of stating a claim. The Court also refused to limit punitive damages under the Connecticut Product Liability Act (“CPLA”) to the “litigation expenses less costs” limit under the common-law rule set forth in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 477 A.2d 988 (1984). Given the Court’s cautious approach to remaking the state’s tort law, Bifolck is in practice a reaffirmation of the status quo in Connecticut—at least for now. The Court did leave open the possibility that it might adopt the Restatement (Third) at some point in the future should its standards under § 402A prove “unworkable.”
Wednesday, January 11, 2017
In the National Law Review, Walter Latimer has a column about a recent Eleventh Circuit products case upholding the economic loss rule:
The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In those instances where the product fails but only damages itself and nothing else, the plaintiff’s only remedy is to sue for breach of contract against the manufacturer of the product. The plaintiff cannot seek recovery from the manufacturer under product liability causes of action. The Economic Loss Rule has historically served as the boundary between tort and contract law. Despite the fact it is part of the basic fabric that makes up tort law, it is still challenged by plaintiffs in product liability actions.
In Eiber v. Toshiba Americas Medical Systems, the plaintiff radiologist tried to sue an international electronics manufacturer for failing to maintain an MRI scanner that was out of date. The manufacturer advised the radiologist that the scanner had reached the end of its useful life, and the manufacturer would no longer provide service to it under contract. The aging scanner eventually stopped working, which the plaintiff claimed was due to negligent repairs rather than a failure of the scanner.
The Eleventh Circuit affirmed the district court's dismissal on the basis of the economic loss rule.
Wednesday, December 14, 2016
Peter Hayes, of Bloomberg BNA, has a piece on the potential for a new wave of tort suits based on nanotechnology (essentially the technology of really small things). Nanotechnology can be used to make almost anything, but there have been concerns about health side effects. Hayes notes many experts predicted such a wave a decade ago, and inquires of several experts whether the predictions were wrong or whether the wave is still coming. His piece, "Nanotech Tort Litigation: Potential Sleeping Giant", is here.
Friday, December 2, 2016
This summer I taught Products Liability, and I mused that it was a terrific capstone course. I received more evidence of this yesterday. One of the students in that course is graduating early this month. In a reception for our December graduates, unprompted by me, he told me that Products was a great course to take right before preparing for the bar exam. He cited the review of tort and contract principles.
The California Supreme Court is reviewing a case by one of the courts of appeal that adopted "innovator liability" in products cases, the doctrine imposing liability on brand name manufacturers for injuries caused by their generic versions. Most jurisdictions have rejected the doctrine. The Pacific Legal Foundation's Liberty Blog urges rejection of the theory:
As we argue in our brief, that decision has no connection to any conceivable rationale normally employed in tort. Generally, tort law exists to deter unreasonably dangerous behavior, and to compensate wrongful injuries. But there can be no deterrence where an injury occurs after the generic manufacturer sells the production rights to someone else, and relinquishes control over how the drug is produced and labeled. Only those entities that can monitor, label, test, or otherwise control a product have an incentive to make that product safer. The decision is also unfair, because it imposes never-ending liability for statements that generic manufacturers make. Not even leaving the market and selling the production rights to someone else will relieve a brand drug company from liability.
Wednesday, November 30, 2016
Mike Rustad and Tom Koenig have published "Rebooting Cybertorts for the Internet of Things" in The Harvard Law Record. A sample:
This unbalanced cybertort jurisprudence has the effect of padlocking the courthouse door to most Internet-related injuries. After Concepcion and Italian Colors, expect even more one-sided consumer arbitration agreements. Such TOU would be rejected in the European Union, which gives consumers the right to pursue justice in their home courts. These mandatory arbitration agreements are essentially an anti-remedy for Internet users because the cost of arbitration will almost always exceed the monetary amount that is at stake. Plus, with class action waivers, there is no aggregation of claims.
It is time for Congress to step in and protect consumers in cyberspace from a new generation of defective products—driverless cars and other connected devices that are part of the Internet of Things.
Cybertort remedies need to evolve further to provide consumers remedies for runaway cars, inadequate security, and misuses of big data. Driverless cars have the potential to all but eliminate driver error. However, connected cars also raise numerous privacy and security concerns. If a car manufacturer assembles massive amounts of data, there is an increased risk that this big data may be misused, compromising the privacy of consumers. Security vulnerabilities in autonomous cars may enable attacks on sensors that notify drivers of dangerous road conditions or could be used to disable the vehicles’ steering and brakes. A compromised vehicle could be used to launch denial of service attacks on other vehicles.
Wednesday, November 23, 2016
R. J. Reynolds is arguing to the Florida Supreme Court that Engle is preempted by FDA v. Brown & Williamson Tobacco Corp. to the extent that Florida state tort law threatens to ban the sale of cigarettes. Moreover, Reynolds argues that applying Engle to all subsequent cases is a violation of due process. Florida Record has the story.
Tuesday, November 15, 2016
Friday, October 21, 2016
In April, the Third Circuit ruled that the FAA does not preempt state law standards in aviation products liability; FAA standards do not eliminate the possibility of a design defect:
The Appeals Court turned to a federal case, Abdullah v. American Airlines, in which the FAA was found to have jurisdiction in the “field of aviation safety.” But the Appeals Court determined that applied to in-air operational safety issues and “does not include product manufacture and design, which continues to be governed by state tort law.” The court further noted that courts “have consistently applied state law to tort claims arising from airplane crashes.”
The case is being appealed to the Supreme Court. AIN Online has details.