TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, July 12, 2016

Products Liability as a Capstone Course

As I wrote last month, I am teaching Products Liability this summer.  It has been over 4 years since I last taught it; the last time through, the course was a 2-credit, paper course.  I am now teaching a 3-credit, exam course.

Perhaps I wasn't thinking in these terms in 2012, but I am struck this time through by how well Products could serve as a capstone course, roughly understood as a culminating course that integrates multiple subject areas.  Obviously, Products is heavily tort-oriented.  One of the common causes of action for an injury by product is negligence, and that is covered (again), including duty, breach, causation, damages, and defenses.  Of course, the sales concept of warranty is thoroughly covered.  But there is more.  A lot of evidence concepts are reviewed, such as Daubert, subsequent remedial measures, admissibility for injuries in the same or similar circumstances, and the burden of proof.  Administrative law is covered because of the regulations passed by agencies and their effect on private litigation (including preemption, which has a connection to constitutional law).  Civil procedure is also touched upon in the form of statutes of limitations, statutes of repose, and the discovery rule. 

As a whole, the course requires students to connect areas of practice to one another, which I think is extremely beneficial.  That is, of course, how they will function in practice.  The course also reviews a number of concepts they will soon face on the bar, including the specific MBE questions about products liability, often given little to no attention in the basic Torts course due to time constraints.

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I have been a products liability defense lawyer for 47 years and rewrote Frumer, Freedman, Sklaren, Products Liability (LexisNexis). I also taught, as an adjunct, a 3 credit products liability course at New York Law School for several years until it was dropped for lack of student interest. I, too, found the teaching fascinating (and challenging), for all of the reason you set forth, but for others as well. Products liability law in the United States is Balkanized. There is a lot inconsistency from state to state necessitating that a student focus on the choice of law that the forum court will make. (Simple example: some states have a product liability statute, others negligence, some form of strict liability in tort ] which may or may not be identical to negligence depending upon the defect at issue] as well as the three breaches of warranties, or some combination of these causes of action.)
There are also the concepts of enhanced injury (crashworthiness) as well as consideration of federal treaties and foreign defendants such as the Hague Service (due process and personal jurisdiction) and Hague Evidence Convention, consular treaties, and the impact of seemingly endless scientific and medical disciplines and the very nature of the products themselves. Indeed, I began my course with a photograph of a 1909 Buick Runabout like the one in which Donald C. MacPherson was travelling when the fateful accident occurred.
In this day of the MBE and the UBE it is, indeed, a wonderful course to connect numerous aspects of law.

Posted by: Cary Stewart Sklaren | Jul 12, 2016 6:43:19 AM

I have been teaching product liability for 25 years in Minnesota. Every year we touch on other areas of law that impact or are impacted by product liability - antitrust, securities, consumer protection, regulatory, workplace safety, contracts, warranty, business ethics and complicance, etc. And we discuss the interplay between government regulation vs. litigation as a driver to make products safer. Very interesting discussions ensue.

Posted by: Kenneth Ross | Jul 12, 2016 9:30:50 AM

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