TortsProf Blog

Lahav on Products and the Crime/Tort Distinction

Alexi Lahav has posted to SSRN Crime and Tort:  Reflections on Legal Categories.  The abstract provides:

This Essay investigates how a particular category of torts—suits for injuries caused by dangerous products—has been seen alternatively as based in contact or criminal law—in addition to, or sometimes instead of, an independent doctrine sounding in tort that arises from a duty not to harm others. This category problem has plagued courts even though, since the 1850s, courts have held that manufacturers had a duty enforceable by private suit not to sell harmful products. The Essay tells the story of regulation of one very dangerous product, milk, in the late nineteenth century as a window into the meaning of how conduct is categorized, with reflections on the significance of putting torts at the periphery rather than the center. The meanings of legal categories map on to conceptions about how society should be governed that continue to be at the heart of many doctrinal and policy debates today.

CA: Tesla Wins Case Over Autopilot Crash

A California woman injured while using Tesla's Autopilot mode sued Tesla for a design defect in Autopilot and the car's air bags.  Tesla defended its product, stating that the user manual warned the plaintiff about using Autopilot on city streets, which is where the accident occurred.  A jury awarded the plaintiff $0 in damages, found that the air bags were not defective, and found that Tesla did not intentionally fail to disclose facts.  Reuters has the story.  Thanks to Nima Bencohen for the tip.

Lytton on Private Third-Party Verification of Product Claims

Tim Lytton has posted to SSRN Private Third-Party Verification of Product Claims:  Lessons from Kosher Certification.  The abstract provides:

Food consumers often desire products with attributes that are not discernable from a product’s appearance. Unscrupulous sellers may be tempted to misrepresent the presence of these “credence qualities.” In response, reputable sellers wishing to distinguish truthful product claims from spurious ones can provide verification using third-party certification. Third-party certification marks on product labels attesting to a wide variety of credence qualities are now commonplace. This chapter analyzes the global system of kosher food certification to develop a general model of reliable third-party verification of credence qualities.

Seattle Jury Awards $275M Against Monsanto in PCB Trial

Last Thursday, a Seattle jury awarded $275 million to six adults and seven children who alleged they suffered brain damage due to exposure to PCB (polychlorinated biphenyls) manufactured by Monsanto.  This was the fifth case against Monsanto over exposure to PCB at Sky Valley Education Center in Washington.  Juries awarded damages in three of the other cases, but a fourth case ended in a mistrial.  Monsanto plans to appeal the verdict.  Amanda Bronstad at Law.com has the story (behind a paywall).  Thanks to Leslie Rowan for the tip.

Meier on Achieving True Strict Products Liability

Luke Meier has posted to SSRN Achieving True Strict Products Liability (But Not for Plaintiffs with Fault).  The abstract provides:

Under modern tort law, the strict product liability cause of action does not impose true strict liability. This Article suggests that this development can be traced to an analytical difficulty: How to prevent a plaintiff with fault from being able to take advantage of the strict liability standard? Courts have not developed a satisfactory doctrine that both imposes true strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovery on this claim. In the absence of a better idea, courts have (mostly) retreated from a true strict product liability standard. This Article offers a solution to this analytical riddle: A simple change to the current comparative fault jury instructions would allow jurisdictions to impose strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovering on a strict product liability claim. This is all that is necessary for jurisdictions that are inclined to put the “strict” back in the strict product liability cause of action.

JOTWELL Torts: Keating on Geistfeld on Strict Products Liability

At JOTWELL, Greg Keating reviews Mark Geistfeld's Strict Products Liability 2.0:  The Triumph of Judicial Reasoning over Mainstream Tort Theory.

Lemann on the Duty to Warn and Automation

Alex Lemann has posted to SSRN The Duty to Warn in the Age of Automation.  The abstract provides:

Autonomous vehicles are expected to drive far more safely than humans do, and yet they create novel risks of their own. This Article explores how the risks of autonomous vehicles should be communicated to those who buy and use them.

In low-level automation systems, where drivers are required to monitor their cars’ driving, instructions provide the information drivers need to understand their role and perform it safely. The fatal crashes involving low-level automation that have already occurred show that instructions alone are not sufficient, and that cars must be designed to account for humans’ tendency to lose focus when engaged in “passive vigilance.”

High-level automation, in which the only driver is an algorithm and there is nothing for the human passenger to do, presents a thornier problem. What form disclosure of the risks of highly autonomous vehicles should take depends on what we expect disclosure to accomplish.

One model of disclosure is utilitarian. Here the goal is to nudge people in the direction of better choices, and disclosures are tailored to encourage optimal behavior. Implicitly adopting this framework, scholars who have addressed this issue argue that the risks of autonomous driving should be presented numerically: disclose to consumers a price, like a risk-rated insurance premium, as an indication of how well the autonomous vehicle they are about to buy performs on the roadways.

Another model of disclosure, however, is deontological. Built on ideas like consent and autonomy, this view of disclosure aims to provide people with salient notice of the risks they might choose to encounter, so that they are not subjected to risk involuntarily. This account has deep roots in our legal culture and, I argue, counsels against disclosing the risks of autonomous vehicles solely in the form of a price. Instead or perhaps in addition, customers should be given a qualitative sense of the hazards they face in driverless cars.

Sharkey on Online Platforms as Cheapest Cost Avoiders

Cathy Sharkey has posted to SSRN Products Liability in the Digital Age:  Online Platforms as 'Cheapest Cost Avoiders'.  The abstract provides:

Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases from brick-and-mortar stores toward digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating a panoply of potential harms to consumers and raising the question of how liability rules should respond, especially in light of the development of international e-commerce and cross-border sales.

Consideration of liability for online platforms as “cheapest cost avoiders” reveals the mechanism by which courts’ decision to impose liability on new entities derives from the regulatory needs of society, and hence the desire to pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over times, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in its development, judges relied explicitly on deterrence, prevention of harm, or CCA rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, recognized new harms and/or expanded tort liability.

Goldberg on 510(k) Evidence

Phil Goldberg discusses two cases before the New Jersey Supreme Court on the issue of 510(k) evidence, i.e., whether courts should allow juries to hear evidence regarding the FDA's review of medical devices when determining whether those devices are defective.  The lede:

  The New Jersey Supreme Court has agreed to hear a pair of cases that will have a major impact on medical
device liability and, in turn, the availability of important new devices that offer technological advances over
previous products. The issue is over the admissibility of evidence that the manufacturer received the U.S. Food
and Drug Administration’s (FDA) clearance before bringing the device to market. Plaintiffs’ lawyers want juries
to decide core liability issues—whether a medical device is defective or its manufacturer should be subject to
punitive damages for how it brought the device to market—as if the FDA did not exist.

The piece is here:  Download Goldberg 510(k) Article for WLF

OH: Amazon is Not a Supplier for Purposes of Products Liability

Last week, the Supreme Court of Ohio ruled that Amazon is not a supplier for purposes of the Ohio Products Liability Act, and therefore not liable for the death of a teenage boy killed by an overdose of caffeine powder sold on the website.  Marianna Bettman has details at Legally Speaking Ohio.

PA: Appeals Court Holds PLCAA Unconstitutional

On Monday, the Pennsylvania Superior Court held that the Protection of Lawful Commerce in Arms Act (PLCAA) was unconstitutional.  In March 2016, J.R. Gustafson was killed when his 14-year-old friend accidentally shot him with a semi-automatic handgun that he thought was unloaded.  Gustafson's parents sued both the manufacturer of the weapon and the store that sold it.  Both defended themselves by invoking the PLCAA, a federal law passed in 2005 that provides businesses cannot "be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended."  The trial court dismissed the case in January, but the appellate court held that PLCAA violates the Tenth Amendment and principles of federalism.  This is the first court to hold the law is unconstitutional in its entirety.  CNN has the story.  The opinion, thanks to Tim Lytton, is here:  Download Gustafson-opinion (002)

Geistfeld: Principles of Products Liability, Third Edition

Mark Geistfeld has posted to SSRN two chapters from Principles of Products Liability (3rd ed.).  The abstract provides:

Two chapters from the third edition of Principles of Products Liability (Foundation Press 2020), a state-of-the-art study of products liability. The book shows how ancient laws have evolved into liability rules capable of solving the safety questions raised by new or emerging technologies, ranging from autonomous vehicles to the Amazon online marketplace. Identifying a development that has been largely ignored by scholars, the book shows how the rule of strict products liability from the last century has been transformed into a more comprehensive liability regime — “strict products liability 2.0” — that incorporates the risk-utility test into the consumer-expectations framework of strict products liability. Across the important issues, this more comprehensive formulation of the implied warranty sharpens the inquiry about what’s at stake, supplying strong rationales for a host of otherwise contentious doctrines — from federal preemption to the relevance of scientific evidence in toxic-tort cases. The analysis throughout relies on extended discussion of the black-letter rules and associated controversies in the case law, providing a solid foundation for understanding and incisively analyzing this vitally important area of the law.

PA: Suit Filed Over Failure to Properly Restrain 9-Year-Old on Roller Coaster

A father has sued the owner of Hershey Park and the designer and builder of the Storm Runner roller coaster over an incident from June 2018.  The suit alleges that his 9-year-old son was not able to pull the harness down and secure it, and that park employees did not come and help or check that he was securely fastened.  The boy was able to leap off the ride as it was starting.  The suit includes allegations of design defect; plaintiff claims the roller coaster should not be able to move unless all of the harnesses are securely fastened.  Although no physical injuries resulted, plaintiff alleges negligent infliction of emotional distress on behalf of both himself and his son.  PennLive has the story.  Thanks to Shannon Costa for the tip.

Is Amazon a Seller for Purposes of Products Liability? Issue Certified to PA Supreme Court

A year ago, the Third Circuit held that Amazon was a seller for purposes of Pennsylvania products liability, even if the goods were owned by third parties.  (Coverage here)  Then the Third Circuit decided to revisit the case en banc.  Last month, the Third Circuit certified the issue to the Pennsylvania Supreme Court:

This is an issue of first impression and substantial public importance, yet we cannot discern if and how 402A applies to Amazon. We are,as a result, unable to predict how the Pennsylvania Supreme Court would rule in this dispute. NOW THEREFORE, the following question of law is certified to the Supreme Court of Pennsylvania for disposition according to the rules of that Court:

Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?

We shall retain jurisdiction over the appeal pending resolution of this certification.

Oberdorf v. Amazon.com, Inc., No 18-1041, 2020 U.S. App. LEXIS 17974 (3d Cir. June 2, 2020)

Thanks to Shannon Costa for the tip.

J&J Loses Daubert Motion in Talc Powder Cases

J&J is facing thousands of suits alleging the talc in its baby powder causes cancer.  A district judge in New Jersey, overseeing the MDL, just handed down a Daubert ruling allowing plaintiffs' experts to testify.  George Conk has details at Otherwise.

Bernard Chazen, the Attorney Who Won Henningsen v. Bloomfield Motors, Passes Away at 96

At Torts Today, George Conk is reporting the death of the attorney who won Henningsen v. Bloomfield Motors in 1960.  Here is the family's obituary:

BERNARD CHAZEN
 Englewood, NJ  Bernard Chazen - Englewood, NJ – age 96 on April 11, 2020 
Born to Nathan and Esther Chazen in New York, New York.
Beloved husband of Bernice Chazen for 56 years who predeceased him in 2010. A wonderful father to David, Jonathan (his wife Cynthia) and Sarah (her husband Martin). He raised his family in Englewood and served on the Englewood Board of   Education (1965-1969, President 1968-1969). General Counsel to the Englewood Redevelopment  Agency (1970-1973).
A loving grandfather to grandsons Sam, Max, Ben, Daniel and Jacob. A first  generation American citizen. Worked in his parent’s millinery shop as a child.
As a member of  America’s greatest generation he enlisted in the Navy during World War II and served as a lieutenant  aboard an LST in the Pacific Theater. Upon his return he attended Middlebury College, Columbia  University (JD) and Rutgers University (LLM) thanks to the GI Bill. He continued to serve in the Navy  reserves as a JAG officer and retired with the rank of Captain.
In 1949 he began to practice law in New  Jersey. His contributions to American jurisprudence in the field of product liability improved the lives of  all Americans. He believed that manufacturers have a responsibility to make their products safe for use.  There was a time that manufacturers of a defective products were not legally responsible to the  consumer because the consumer did not purchase the product directly from the manufacturer and  lacked privity of contract. He searched for the right case to take up on appeal and change the law. He  found it and argued the landmark 1960 case, Henningsen v. Bloomfield Motors, and pioneered modern  product liability law into what became the law of the land.
Manufacturers are now incentivized to make  safe products and avoid liability for defective products that injure consumers. He argued cases before  the US Supreme Court.

He was an Associate Editor of the New Jersey Law Journal from 1967 until his  retirement in 2008 and a prolific writer of editorials. He often lectured to other lawyers on a variety of  legal topics for continuing legal education programs run by ICLE and Inns of Court. He was appointed to  numerous committees by the New Jersey Supreme Court. He was appointed to numerous commissions  by the Governor and served on the New Jersey Law Revision Commission. He was a Certified Civil Trial  Attorney. He was considered a “lawyer’s lawyer”.

Tort Immunity for COVID-19 Countermeasures

At JD Supra, a team from King & Spalding discusses tort immunity under the PREP Act and COVID-19 Response Declaration.  The basics:

Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The COVID-19 Declaration immunizes broadly certain entities from “suit and liability under federal and state law with respect to all claims of loss” related to the manufacture, testing, development, distribution, administration and use of certain countermeasures to COVID-19.

Bell on the Model Uniform Products Liability Act

At Notice & Comment, Bernard Bell has posted "Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law," which describes the history of the Model Uniform Products Liability Act.

Bellwether Opioid Trial Settles; Talks Resume on $48B Larger Resolution

Behind an aggressive approach by Judge Polster of the Northern District of Ohio, the bellwether trial of Cuyahoga and Summitt (Ohio) counties against various manufacturers, distributors, and retailers of opioids has settled for $260M.  The settlement has increased momentum for a grand resolution of all opioid claims at $48B, with talks to resume as early as today.  Reuters has coverage here. 

Busch on a European Perspective on Oberdorf

Christoph Busch has posted to SSRN When Product Liability Meets the Platform Economy:  A European Perspective on Oberdorf v. Amazon.  The abstract provides:

On 3 July 2019 the United States Court of Appeals for the Third Circuit handed down a ruling in the case Oberdorf v. Amazon which could have a seismic effect for online marketplaces on both sides of the Atlantic. The case not only puts a spotlight on how product liability law is applicable in the platform economy. It could also influence the broader transatlantic debate about the future of platform liability. This editorial for the Journal of European Consumer and Market law offers some European reflections on the Oberdorf case and its potential ramifications for the EU policy debate.