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.
Thursday, August 18, 2016
In late 2014, the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, overruling several unusual aspects of state law and declining to adopt R3. The case created a lot of uncertainty, which has been compounded by recent turnover on the court. This summer, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions unveiled the first changes to standard products jury instructions in forty years. The defense bar and manufacturers are not happy. In a ten-page letter (Download DC-#626926-v1-Pa__jury_instruction_protest_letter_2016) sent to the subcommittee's chair, partners from multiple law firms and twenty companies, including Johnson & Johnson; Pfizer Inc.; GlaxoSmithKline; Ford; Shell Oil, and Eli Lilly, raised objections to the proposed standard jury instructions. The Legal Intelligencer reports:
Chief among those issues, the defense bar said, is the update's failure to include any mention of the requirement under Section 402A of the Restatement (Second) of Torts that a product defect must be "unreasonably dangerous" to support strict liability. The instructions are inconsistent with Tincher's adoption of the "prevailing standard of proof" reflected in the jury instructions of most states that follow Section 402A, and should be rewritten to include an instruction on the issue, the letter said.
The subcommittee chair responded that the subcommittee had taken all perspectives into account when crafting the revisions, but would nevertheless review the proposed instructions again at its next meeting. The full article (behind a free sign-up wall) is here.
Thursday, August 4, 2016
Many jurisdictions have enacted protections for "innocent" sellers of products found to be defective in an attempt to place the burden of compensation on the party with (the most) fault, generally the manufacturer. Texas has a statute allowing an innocent seller to receive indemnification. A general contractor incorporated a defective roof truss into its project and the issue arose whether the contractor was a "seller" for purposes of the statute. The court ruled it was not, as it was not in the business of selling roof trusses, rather the provision of roof trusses was incidental to its general construction services. Jones Day's website has details.
Thursday, July 28, 2016
Dan Monk at WCPO in Cincinnati has written an article about P&G's products exposure. Monk finds suits against 9 of P&G's products (they have between 100 and 200 products). He chronicles the various cases against such brands as Tide Pods, Old Spice, and Charmin.
Friday, July 15, 2016
This week, the Second Circuit endorsed the general proposition that certain types of bankruptcy asset sales bar successor liability. Regarding claims against GM based on ignition switch defects, however, the court ruled the 2009 bankruptcy of "Old GM" does not bar those cases against "New GM", the company that bought Old GM's assets. The court based its ruling on the fact GM hid the defect at the time of the bankruptcy proceeding. The New York Times has more.
Monday, July 11, 2016
Take-home exposure cases, in which a worker brought home a toxic substance like asbestos on his or her clothes and sickened a spouse, are being expanded in New Jersey. Last week the court unanimously held such cases were not restricted to spouses. The facts involve a woman who later became the spouse of a worker bringing home toxic substances. She was not, however, married to him at the time the exposure began. The court stated the spousal relationship was not necessary; several factors must be weighed, the most important of which is foreseeability. NJ Spotlight has the story.
Wednesday, July 6, 2016
A man driving a Tesla Model S in Florida has become the first self-driving car fatality. Statements by Tesla and NHTSA concur that, while in Autopilot mode, the car failed to distinguish the white side of a turning tractor trailer from the bright May sky; the brakes were not applied. The man's family has retained an attorney. This case will begin sorting out all of the unanswered questions created by the new technology. The ABA Journal has details.
Updated: Analysis from The Guardian here.
Wednesday, June 29, 2016
At least 6 children have been crushed to death by IKEA dressers, prompting the company to recall approximately 29 million dressers dating to 2002. Suit filed against IKEA alleges problems with the design and warnings on the products. ABC has the story.
Wednesday, June 15, 2016
I'm teaching Products Liability this summer. It's a fun course to teach, and I have a sense of relief about many of the products defects we no longer have to deal with on a regular basis. For example, last night in class we covered a case in which a wheel flew off a car and injured a child. That seemed to me an antiquated problem. Yet today one of my students sent me this article about a 2013 Tesla Model S electric car having the same issue. Moreover, the company sometimes proffers consumers waivers and nondisclosure agreements as part of the repair process. Nondisclosure agreements are common in lawsuit settlements, but this seems unusual.
Wednesday, May 4, 2016
Cathy Sharkey has posted to SSRN The Remains of the Citadel (Economic Loss Rule in Products Cases). The abstract provides:
Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise of implied warranty earlier in the century, was of great doctrinal import — a moment when strict liability threatened to erase altogether the boundary between tort and contract in the context of defective products cases and move those cases firmly into the tort realm. The economic loss rule emerged as a crucial new levee against a flood of potentially limitless tort liability. It forged a new dividing line, keeping cases involving pure financial losses within the domain of con-tract by denying recovery for such losses under any theory of tort. Seen in this light, the economic loss rule emerged to protect the “remains” of the citadel of privity.
William Prosser, so intently focused on the dramatic siege on the citadel of privity, overlooked a few, highly significant cases, where courts continued to require privity in order for the plaintiff to recover for negligently inflicted economic losses by defective products. Over the two decades that followed Prosser’s The Fall of the Citadel, the debate over the economic loss rule in products cases continued to unfold, culminating in the U.S. Supreme Court’s embrace in East River Steamship. That case ensured the economic loss rule would keep contract from “drowning in a sea of tort” and that the wall between the “separate spheres” of tort and contract law could not be breached.
After an exploration of the evolution of, and rationales for, the economic loss rule in products cases, this Article examines whether the citadel’s last bastion should be preserved. It con-cludes that the economic loss rule in products cases may be best justified as a means to induce the putative victims — here, the parties with superior information regarding risk of financial loss — to protect themselves.
Thursday, April 7, 2016
Jill Lens has posted to SSRN Product Recalls: Why is Tort Law Deferring to Agency Inaction?. The abstract provides:
Tort law currently recognizes liability related to a product recall in only narrow circumstances. Liability is possible if the manufacturer acts unreasonably in an agency-ordered recall or in a voluntary recall, which is likely the result of agency encouragement. What this narrow standard leaves out is possible liability for a manufacturer’s choice to simply not recall. But courts agree that only government agencies are equipped to evaluate the reasonableness of a recall and to determine if one is justified. Thus, if an agency never effects a product recall, tort liability is not possible.
A few commentators have applauded or criticized the narrow standard for liability. But this Article is the first to thoroughly question the standard in light of its real basis—deference to administrative agencies. The Article contrasts this complete deference on recall orders to the very limited deference courts give to agency determinations in traditional defect claims, modern post-sale warning claims, and within decisions to punish the manufacturer by imposing punitive damages. The Article also questions the wisdom of complete deference to an agency’s inaction in not ordering a recall and the legal validity of such deference based on its inconsistency with negligence per se principles. Last, the Article argues that there is nothing special about product recalls deserving of such special deference.
Thursday, January 28, 2016
Anita Bernstein has posted Voluntary Recalls to SSRN. The abstract provides:
The voluntary recall of a defective product, whereby a manufacturer or seller encourages purchasers to return a defective item, looks like a much happier phenomenon than what it fends off: injury for the buyer, liability for the seller, burdens on regulators. Acknowledging these advantages, this Article reviews other aspects of the voluntary-recall fix. First, the term recall has no consistent definition or usage in the United States Code and the Code of Federal Regulations. Second, product recalls are not really voluntary: sellers and buyers alike do not make informed, uncoerced choices to participate in this remedy. The Article concludes with two sets of recommendations to reform the law of product recalls, the first modest and the second ambitious.
Friday, December 11, 2015
Barbara Peters has published The Warnings Compendium (available at Amazon). Topics include:
Designing warnings, deciding when to warn, adequacy, ambiguity, location, conspicuity, attention getting, signal words, color, permanency, cradle-to-grave, audience, intermediaries, complexity, effectiveness, repetition, neurobiology, continuing duty, channels to warn, and legal doctrines affecting warnings.
Friday, November 13, 2015
Last week, I reported that open-heart surgery patients at York Hospital may have been exposed to bacteria that could lead to infections. This week, Penn State Hershey Medical Center announced that its open-heart surgery patients may have also been exposed to bacteria. This appears to be developing into potential products liability cases, perhaps all over the world:
The infections have been linked to heater-cooler devices that are part of the process of controlling patients' body temperature during open heart surgery. A department of health spokeswoman said heater-coolers are used in all open heart surgeries.
Pennlive has the story, including pictures of the device in question.
Tuesday, November 10, 2015